K-Generation Pty Ltd & Anor v Liquor Licensing Court & Anor
[2008] HCATrans 366
[2008] HCATrans 366
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Adelaide No A12 of 2008
B e t w e e n -
K-GENERATION PTY LIMITED
First Appellant
GENARGI KRASNOV
Second Appellant
and
LIQUOR LICENSING COURT
First Respondent
COMMISSIONER OF POLICE
Second Respondent
FRENCH CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
TRANSCRIPT OF PROCEEDINGS
AT ADELAIDE ON WEDNESDAY, 5 NOVEMBER 2008, AT 10.15 AM
(Continued from 4/11/08)
Copyright in the High Court of Australia
FRENCH CJ: Yes, Mr Gageler.
MR GAGELER: Your Honours, I just have four loose‑ends from yesterday. Your Honour Justice Gummow asked about section 28A having its providence in some provisions in the Firearms Act that were added in 2003. That was as a result of the COAG agreement but there is no Commonwealth legislation; there is no standard form provision that operates nationally.
GUMMOW J: There is an Implementation Act of the Commonwealth, is there not that provides money, I think?
MR GAGELER: Not covering this topic so far as I understand, your Honour, or so far as our researchers have revealed, and I think I can be confident stating the negative. So there are no standard form provisions, and it appears no very close equivalents in other States. The topic was dealt with in different ways in different States.
Secondly, I think it was your Honour Justice Kirby asked about the history of the Licensing Court. We have provided to your Honours a document that sets out the main stages in that history. What we have not done is given your Honours every version of the Act as it was at some stages repealed and re‑enacted almost annually. What we have given you is the different ways in which the court has been constituted over the years. It has been a court of record since 1932, it has been constituted by District Court Judges since 1985, and the provision allowing for the appointment of former District Court Judges has been there since 1997.
KIRBY J: We did receive or I received the earlier report by Mr Anderson, QC, Royal Commissioner, which set out some background material. So I think you can assume the Court has that.
MR GAGELER: Yes. If your Honours want more, we can certainly provide it. We have tried to avoid to truckload.
KIRBY J: I think we have more than enough on the history of the Licensing Court of South Australia. I never knew that I would know so much about that court, if it is a court.
MR GAGELER: The third question is your Honour Justice Gummow asked the Solicitor‑General for South Australia whether the Licensing Court has jurisdiction under any other Act. The answer is, yes, the Gaming Machines Act of 1992, section 69, and your Honours might note that section 12 of that Act enacts the same regime as section 28A of the current Act.
Finally, your Honours, I said in the course of argument yesterday that there was no problem with a State Parliament conferring State judicial power on a State institution that is not a court that is a tribunal, I need to add a qualification to that. I should say except in respect of matters covered by sections 75 and 76 of the Constitution, and the reason I need to add that qualification is that otherwise there would be a capacity for a State to undermine the operation of section 77(ii) of the Constitution that allows the Commonwealth Parliament to define the extent to which the jurisdiction of any federal court, which of course can only have jurisdiction in 75 and 76 matters, is to be exclusive of the jurisdiction of State courts. If the States could invest 75 and 76 judicial power in State tribunals the operation of section 77(ii) would be seriously undermined.
A qualification to that effect appears to have been expressed by Chief Justice Spigelman in the 2UE matter at paragraphs 55 to 56 of his judgment, and similarly in the judgment of Justice Kenny to which your Honours have been referred at paragraph 222, there is a similar qualification.
KIRBY J: I do not quite understand that. Would you just explain that a bit?
MR GAGELER: Yes. Does your Honour have section 77(iii)?
KIRBY J: Yes, I do, I have it open. I am looking at it.
MR GAGELER: What it allows the Commonwealth Parliament to do is to define the extent to which the jurisdiction of any federal court, which is section 75 or section 76 jurisdiction is to be exclusive of that which belongs to or is invested in the courts of the States.
KIRBY J: As, for example, for a time the Trade Practices Act jurisdiction was exclusive to the Federal Court?
MR GAGELER: Yes. The difficulty that would be encountered if a State could invest sections 75 and 76 jurisdiction in a body that is not a State court would be that the operation of section 77(ii) would be undermined. That is, the exclusiveness of the jurisdiction of a federal court that is contemplated by section 77(ii) is exclusiveness of State courts, and the necessary assumption is that if 75 or 76 jurisdiction is to be exercised by any State body at all it is to be a State court.
KIRBY J: Yes, I see.
MR GAGELER: Yes, if the Court pleases.
FRENCH CJ: Thank you, Mr Solicitor.
KIRBY J: It does not seem to touch whether a particular court is a State court or is not a State court for the purpose of the Constitution, though.
MR GAGELER: It does not. It is just in the course of presenting my argument in the last 15 minutes of yesterday, I skated over a qualification that I should have made.
FRENCH CJ: Solicitor‑General for Queensland?
MR SOFRONOFF: May it please the Court, if it is convenient to the Court, the remaining interveners propose to address the Court in the following order: After me, my learned friend, the Solicitor‑General for Victoria will make her submissions followed by my learned friend, the Solicitor‑General from New South Wales and then my learned friend, the Solicitor‑General from Western Australia.
FRENCH CJ: Late to join in, as always.
MR SOFRONOFF: Might need to repair the damage. Your Honours, could I ask you go to section 77(iii) of the Constitution. That section, of course, contains the head of legislative power that entitles the Parliament to make a law investing a court of a State with federal jurisdiction. As to that federal jurisdiction, it is, of course, contained in sections 75 and 76. The expression “court of a State” appears in 77(iii). The expression “such other courts” appears in 71. Section 73 contains, in 73(ii) the expression “other court”, but the other place where, apart from Chapter III where the expression “court of a State” appears, is in 51(xxiv) dealing with service and execution of process.
It follows then, in our submission, that the expression “court of a State” is a constitutional expression and for the Commonwealth Parliament validly to pass a law investing a State body with federal jurisdiction, it must be a court of a State. That raises the question what is that and, in our respectful submission, that is a question of substance, of course, not of form. As your Honours, Justices Gummow, Hayne and Crennan said in Forge, it is very difficult, indeed it is not possible or desirable, to make a single all embracing statement defining the characteristics of a court. For convenience, before going to the statute that your Honours are concerned with here, may I highlight some of the characteristics that have been held from time to time to be essential characteristics?
One essential characteristic of the exercise of judicial power, be it Commonwealth judicial power or State judicial power as opposed to the exercise of some other kind of power, is that the judicial power involves the ascertainment of rights or duties which are said to exist and a determination whether those rights or duties bind somebody with a capacity then to proceed to enforce those rights or duties in some particular way. Could I take your Honours to the Boilermakers’ Case 94 CLR 254 at 281 to 282.
GUMMOW J: What will we derive from reading yet again this passage in the Boilermakers’ Case?
MR SOFRONOFF: I want to underline, if I may, the essence of judicial power as involving the ascertainment of rights and liabilities as they exist at the time of the making of the decision, or at least of the institution of the suit, and that that process involves the application of the law and principles of law to facts as found leading to the conclusion. Your Honours will find that referred to at pages 281 to 282 in contradistinction to the arbitral power which, though it might involve some fact finding that fact finding is ancillary to the legislative power of the conciliation arbitration body that the Court is concerned with there.
To a similar effect is the passage in Brandy v Human Rights and Equal Opportunities Commission 183 CLR 245 at the foot of page 258 over to 259 in the reasons of the Chief Justice and Justices Brennan and Toohey, their Honours said in conclusion at the end of that paragraph in 259:
The determination involves an exercise of such power not simply because it is made by a court but because the determination is made by reference to the application of principles and standards “supposed already to exist”. And the determination is binding and authoritative in the sense that there is what has been described as an immediately enforceable liability of B to pay A the sum in question. Consequently, even if the determination in such a case were to be made by an administrative tribunal and not by a court, the determination would constitute an exercise of judicial power, although not one in conformity with Ch III of the Constitution.
KIRBY J: Yes, but as Justice Crennan pointed out in one of the cases that is referred to in the submissions, it is not at all unusual for courts, including federal courts, to have criteria of the public interest – very nebulous, very open‑ended and yet still be courts. So you cannot read these passages out of context and over‑rigidly, because otherwise virtually every court would not be a court by a strict, rigid standard.
MR SOFRONOFF: I do not wish to maintain a submission that if a body exercises a power to make a decision which is based upon a discretion and the discretion is to be exercised upon the basis of criteria that are general, to some degree, that that cannot be an exercise of judicial power. Of course it can. And sometimes the criteria are criteria which are inapt for a court to exercise. As the Full Court of the Federal Court decided in the Yanner Case, where the particular criteria that had to be applied were criteria which would not have been possible for a federal court sensibly to attempt to apply. I will come to that case in a moment, but no part of my submission involves the proposition that because a discretion of that kind is to be exercised the power is not judicial power.
Here we would submit that when we come to the Act in due course the particular form of discretion granted to the Licensing Court is so untrammelled and involves considerations of public policy which are so ill‑defined that there are no criteria which would justify a conclusion that the court is acting judicially in that sense.
GUMMOW J: Are you going to be considering the gambling legislation as well, which we are told confers jurisdiction on this Court?
MR SOFRONOFF: I will need to get a copy of that, your Honour, to see if it reflects the –
GUMMOW J: There is a distinction between whether it is a court and what jurisdiction has been reposed in the court, is there not?
MR SOFRONOFF: Your Honour, we would approach it in this way; the legislature of the State of South Australia has denominated the Licensing Court to be a court and indeed a court of record, and for certain purposes it will have to be considered to be a court. The functions that it performs are, in our respectful submission, all administrative or almost all administrative. The consequence must be that, although it is to be regarded as a court for some statutory purposes and for perhaps some other common law purposes, for the purposes of Chapter III, which is a distinct statutory context, it is not a court.
GUMMOW J: What you are really saying is that section 39(2) of the Judiciary Act does not apply to it?
MR SOFRONOFF: Correct, yes.
KIRBY J: It is a little odd, if I can say so ‑ at least it seems so to me ‑ that the State of Queensland turns up in a case and says that though the State of South Australia says in its legislation it is a court, has said so since 1932, I think, has said it is a court of record, comes before this Court and asserts that it is a court, you come along here and tell us that it is not a court. Now, I do not myself see that it is impossible for you to do that, but it is a little odd that that has happened.
MR SOFRONOFF: Could I explain it, your Honour. The Kable principle, of course, intrudes upon State legislative power, but only to the extent that ‑ ‑ ‑
KIRBY J: It does not intrude very much.
MR SOFRONOFF: Well, your Honour, it has not had to intrude very much because State legislatures and State executives being conscious of it ‑ ‑ ‑
KIRBY J: We will not go there.
MR SOFRONOFF: Well, your Honour, the reason is as Justice McHugh observed in – I think it was Fardon – one would not expect a State legislature to pass an Act that would so affect a Supreme Court of a State so that it would offend the Kable principle, it having been enunciated.
KIRBY J: I agree with Justice McHugh you would not expect it.
MR SOFRONOFF: And you should not expect it and as a consequence the cases in which the Kable principle has been infringed because of State legislation are thankfully and rightly rare.
GUMMOW J: Anyhow, paragraph 10 of your submissions is the heart of it, is it not? You want to get rid of Kable, in effect, by ‑ ‑ ‑
MR SOFRONOFF: Excuse me, your Honour.
GUMMOW J: Despite the lack of enthusiasm by any of the actual actors in this litigation to do so.
MR SOFRONOFF: I am sorry what was the question your Honour put to me?
GUMMOW J: Paragraph 10 is the heart of what you are getting at is it not?
MR SOFRONOFF: Yes.
HAYNE J: Paragraph 10 defines Kable out of existence, does it not?
MR SOFRONOFF: No, your Honour, it applies ‑ ‑ ‑
HAYNE J: It self‑referentially, reaches a result, that Kable is wrongly decided?
MR SOFRONOFF: No, your Honour. Kable applies with full effect to State Supreme Courts as it must because those courts must exist as State Supreme Courts, as Kable decided and as has been repeated in subsequent cases dealing with the principle. The question here is whether ‑ ‑ ‑
HAYNE J: So that Chapter III courts to which you refer in paragraph 10(a) include the Supreme Courts of the States, is that right?
MR SOFRONOFF: Yes.
HAYNE J: But are limited to Supreme Courts of the States?
MR SOFRONOFF: Well yes, your Honour.
HAYNE J: Or do they extend to courts of a State as identified in 77(iii)?
MR SOFRONOFF: It does not apply to courts of a State, except in this way. We would submit that if a decision‑ making body of a State – if the Commonwealth Parliament seeks to invest it with federal jurisdiction then the question must be asked is it a court of a State within the meaning of Chapter III? If it is then federal jurisdiction can be invested in it. If it is not because it offends the Kable principle, or we would put it another way; if it lacks one of the institutional characteristics that make a court ‑ ‑ ‑
GUMMOW J: It is not the court offends the Kable principle ‑ ‑ ‑
MR SOFRONOFF: I am sorry, your Honour?
GUMMOW J: ‑ ‑ ‑it is the legislation invested in a particular head of power in the court that causes the problem.
MR SOFRONOFF: If the legislation creating the court ‑ ‑ ‑
GUMMOW J: And you want to fudge that into the court itself.
MR SOFRONOFF: I am using loose language and I will correct myself, your Honour.
CRENNAN J: The chameleon doctrine would not survive what you are saying, would it, because you are ‑ ‑ ‑
MR SOFRONOFF: Well no, your Honour, because it would because as has been pointed out ‑ I think again by Justice McHugh in Fardon ‑ there are many tasks carried out by State courts which might be thought to be repugnant to traditional notions and yet which do not render such courts inappropriate receptacles of federal jurisdiction.
GUMMOW J: An advisory opinion would be a classic example, would it not?
MR SOFRONOFF: As well as other administrative and executive functions that could never be exercised by a federal court.
FRENCH CJ: It is your submission, is it, that to take a State decision‑making body outside the constitutional field of a Chapter III court you need more than legislation which confers upon it a function incompatible with fitness to be a repository of federal jurisdiction à la Kable, but rather a statutory framework which deprives the character of a court for constitutional purposes. So it goes beyond the range of the universal discourse in Kable, does it not?
MR SOFRONOFF: Yes.
FRENCH CJ: So one has to look at the entire constitution of the court, not just whether a particular statute conferring a particular function on it offends Kable?
MR SOFRONOFF: Yes. What we object to by way of submission is a contention that if a State creates a body styled a court and which has the characteristics of a court and answers the description “court of a State” for Chapter III, that it thereafter cannot change the character of that court so that it ceases to answer the description in Chapter III. It can, of course, abolish such a court, not the Supreme Court.
FRENCH CJ: What would be the consequence of your argument had the particular – let us take the particular function we are talking about here, this function conferred on the Licensing Court and that had been conferred on the District Court. Assuming it would have been invalid on an application of the Kable principle, absent your primary argument, would you then say that the conferring of that function would, as it were, pulls the District Court out of the category of a Chapter III court?
MR SOFRONOFF: Yes, I would, and one would not ‑ ‑ ‑
FRENCH CJ: That is what you say about the Licensing Court. This function, the 28A function, pulls it out of the Chapter III pool.
MR SOFRONOFF: No, we go further, your Honour. We say that all of its functions ‑ ‑ ‑
CRENNAN J: Are administrative.
MR SOFRONOFF: Are administrative, and it is not a court.
FRENCH CJ: Yes, that is why I was asking, if this function – just put the 28A function, which is what we are talking about in this appeal – had have been placed into the District Court, in other words, if the District Court of South Australia had to do it, would that take the District Court out of the category of a Chapter III court?
MR SOFRONOFF: And your Honour would also add, and if that function were determined to be offensive to the Kable principle, then, yes, it would.
FRENCH CJ: Assuming it is offending the Kable principle.
MR SOFRONOFF: Because the alternative would be that because the Commonwealth Parliament has chosen to invest a court which at that time is a court with federal jurisdiction, it must forever remain a court.
FRENCH CJ: That seems to run a lot broader than the way you characterised the proposition earlier.
MR SOFRONOFF: It is, because the purpose of my submissions is to seek to demonstrate that the Licensing Court is not a court. It fulfils administrative functions. It is not a court despite its nomenclature. As I understand it, my learned friend, the Solicitor‑General for Western Australia, is going to address the matters that your Honours are putting to me now. They are part of our submissions but the division of labour is such that he will addressing that.
FRENCH CJ: Anyway, that is a position you maintain?
MR SOFRONOFF: Yes. We submit that in this case it is not necessary to go so far as to determine what is the consequence. If it is found that a court which has been a court of a State and is invested with federal jurisdiction, if a statute confers upon it a function or power which is offensive to Kable, what is the consequence? Is the consequence that it thereby ceases to be a court of a State? We would contend that it does, that is the consequence, and it is no longer a suitable repository of federal jurisdiction and the Judiciary Act, section 39(2), no longer applies to it. But we do not have to go so far in this case because this Court ‑ ‑ ‑
GUMMOW J: So section 39(2) becomes pro tanto invalid, does it?
MR SOFRONOFF: No, it simply does not apply to that body because that body is not a court of a State.
GUMMOW J: It ceases its ambulatory operation in that respect, does it?
MR SOFRONOFF: Yes. Could I return then to the thrust of my submissions. Otherwise, your Honours, the consequence is that a State could create a body that is not a court of a State, there is no doubt about that. A State could create a court of a State within Chapter III and abolish it, as happened with the District Courts in South Australia and Queensland, and then re‑establish them. But it could not pass a law which changed the character of that decision‑making body from being a court to being a mere tribunal. In our respectful submission, it can. It could strip the District Court of its status as a court by legislation and make it a body of a different character.
GUMMOW J: Are we going to have any contra dicta for these propositions, Mr Solicitor?
MR SOFRONOFF: Do I have a contra dicta?
GUMMOW J: Yes. Because if we do not, it suggests that interveners have intervened too much.
MR SOFRONOFF: Then, your Honour, I suspect I do not have a contra dicta.
GUMMOW J: No.
MR SOFRONOFF: But, the thrust of my submissions that I wish to address this morning relate not to that but to the question, is the ‑ ‑ ‑
GUMMOW J: Whether there is contra dicta or not relates to what one says in the judgment, about what you are submitting to it.
MR SOFRONOFF: I understand that, your Honour.
KIRBY J: You have a contra dicta in this sense that the State of South Australia, and I think the Commonwealth’s submissions, do not agree with the submissions that you are urging on the Court.
MR SOFRONOFF: Your Honour observed this morning that it was a little bit odd that we are raising these things when South Australia is content to treat the court as a court and one of the reasons, of course, is that the Commonwealth is concerned to advance propositions that would widen the territory within which one would find a court.
KIRBY J: It has not been concerned to widen the territory of Kable. I do not think it even turned up in Kable to resist the Kable principle. I did not see Dr Griffiths’ name in the list of counsel there.
MR SOFRONOFF: I mean in this case. My learned friend, the Solicitor‑General for the Commonwealth, was at pains to point out that this body was a court for the reasons that he advanced and it is our intention to submit the contrary.
HAYNE J: Does your position amount to this, Mr Solicitor, that you wish to flag the fact that in a case in which issue is properly joined Queensland would wish to be in a position to be free to advance the submissions you now make?
MR SOFRONOFF: I would like to put it that way, your Honour.
HAYNE J: Does it go beyond that?
MR SOFRONOFF: It is not necessary to go beyond that in this case.
HAYNE J: That is to say, you flag an argument which in later litigation otherwise constituted the State interests for which you appear may wish to advance?
MR SOFRONOFF: Exactly, your Honour, but the primary argument that I need to advance as an intervener is whether the Kable principle applies to this decision‑making body because it is not a court within the meaning of Chapter III and that does not depend upon the other matters that I have been speaking about until now.
KIRBY J: One would not think that one would take a narrow view of what is a court for the purpose of section 77(iii) of the Constitution. First of all, it appears in the Constitution. Secondly, it is inherent in the States that they will create all sorts of courts. The New South Wales State Parliament has created the Land and Environment Court and I think Queensland has something a little similar but other States do not and experimentation and variety is part of the features of the Federation. So that one would not give it a narrow interpretation and, in fact, there is some suggestion I saw in reading for this case in English authority that one should look now on tribunals in the current age as taking sometimes on the features of a court and it may be that would be also the case in Australia. I do not know.
MR SOFRONOFF: Yes, your Honour. We would accept everything that you have said. We would add this, though, that whether something is rightly called a court depends upon the context in which the word “court” appears and, as the New South Wales Court of Appeal found in New South Wales Bar Association v Muirhead, for the purposes of the supervisory jurisdiction of the Supreme Court in protecting inferior courts that do not themselves have the power to punish for contempt, a body can be a court and as that same court found in Dao, a workers compensation tribunal can be a court. It would not follow, though, that the answer to those questions in the affirmative for those purposes would result in an affirmative answer to the question, is it a court within the meaning of Chapter III, which is what I wish to address.
KIRBY J: But if we are looking at the purpose of the Kable doctrine in a constitutional context, its purpose is to say that given the number of courts of the States which the States themselves create, given their variety and the importance of the integrity of those courts and of the manifest integrity so that citizens do not think that executive governments, like James II, closet themselves with such courts and thereby destroy the reputation of those courts, a development which would infect all of the courts of the nation and every judge in the nation, that you would not take a narrow view as to what courts that are protected by the constitutional principle are.
MR SOFRONOFF: Yes, your Honour, I would accept what you have said and, indeed, a situation may arise where, to use the much used expression, in order to cloak an executive decision with the apparent impartiality of a court, the Executive creates an unfair tribunal as an emanation of itself but styles it in every respect a court. The consequences there would need to be addressed if that case ever arose.
The case here, in our respectful submission, is much simpler because we would submit all of the functions performed by the Licensing Court are administrative, wholly administrative. If we are wrong about that, there is a skerrick of judicial power being exercised, State judicial power, which does not alter its character as an administrative body, not a court, for the purposes of Chapter III.
CRENNAN J: You would accept in that context that the processes used by the body are judicial processes?
MR SOFRONOFF: Partly judicial, partly non‑judicial, your Honour. We would submit that – what I wish to do, if I may ‑ ‑ ‑
CRENNAN J: There is a good deal in the legislation that makes reference to orthodox judicial processes.
MR SOFRONOFF: That is true, your Honour, but in a way that is often also found in administrative bodies, admittedly administrative bodies, and I will come to the statute in a moment, if I may, without taking up any more – in fact, I will go there now without taking up any more of the Court’s time. Could I summarise the functions of the Licensing Court, your Honours?
The Licensing Court has these functions broadly. It grants or refuses to grant licences to sell liquor in various forms. It approves applications to transfer a licence from one person to another upon the application of the transferee. It approves such things as alterations of the scope of the premises so as to include extra square footage. It approves persons who wish to be licensed to act as crowd controllers, bouncers. It revokes approvals given to such persons, and it has a disciplinary jurisdiction.
If I could take your Honours first to section 17. The jurisdiction to make these decisions is divided between the Commissioner and the court. Section 17(1)(a) provides for those things which the Commissioner decides. Then 17(1)(b) provides that in certain events “the Commissioner must refer the matter for hearing and determination by the Court”. It does not depend upon the subject matter. It depends upon matters like whether it is a non‑contested matter, whether attempts to resolve the matter by conciliation have failed, whether the parties nevertheless request the Commissioner to deal with the contested matter and so on. The Court then must determine, subparagraph (c) all matters referred to and all matters that are otherwise within its original jurisdiction. If we go to section 53, we see the first of the types of matters with which the licensing authority – the licensing authority is a term that comprehends the Commissioner and the Licensing Court.
GUMMOW J: We have ploughed over this pretty thoroughly yesterday, I thought.
MR SOFRONOFF: I will be brief, your Honours, but it is necessary to rehearse them, albeit briefly, in order to make the point. Your Honours will see that section 53(1) involves “an unqualified discretion to grant or refuse an application” to grant a license or other right upon “any ground, or for any reason”. It follows then that there is no determination of existing rights, there is no controversy between parties. A right and obligation will arise only by reason of the grant of a licence. A right is not to be determined by the application of legal principles to facts, but rather a right will arise by the application of policy and subjective factors.
HAYNE J: That has to accommodate the fact that by definition it is a contested matter that has come to the Court, does it not? If it is uncontested the Commissioner will have dealt with it, is that right?
MR SOFRONOFF: Yes.
HAYNE J: So what is the contest about?
MR SOFRONOFF: The contest is not clear because if one goes to the provision relating to objectors, which is ‑ ‑ ‑
FRENCH CJ: It is possible, is it not, for the Commissioner to refuse an application absent objection and absent intervention just on the basis that they do not meet the relevant criteria?
MR SOFRONOFF: Yes.
FRENCH CJ: The Commissioner is not then a party in the court on review?
MR SOFRONOFF: It does not appear that the proceedings before the court are treated as inter partes except in one area, and that is ‑ ‑ ‑
FRENCH CJ: I am just concerned that in many cases there will be objectors and perhaps an intervention, as in this case, but there is a possibility that the court may be exercising an essentially inquisitorial function upon review, or at least where there are no contradictors.
MR SOFRONOFF: Whether there are or are not contradictors, in our submission, the court is performing an administrative function to determine whether it is in the public interest to create a new right in the ‑ ‑ ‑
FRENCH CJ: Yes, I understand the point you are making.
CRENNAN J: But the setting for the contests under the Act are to be found, I think, by reference to the objects of the Act, which is to be found in section 3, so they are not unanchored. They are anchored in the objects there set out in section 3.
MR SOFRONOFF: Yes, and just as by a parity of reasoning, just as in the context of disciplinary functions conducted by medical boards and such bodies, it is the public interest that is the subject matter and the protection of the public in a particular respect, and there is no lis between the parties nor is there a punishment imposed, although a sanction might be, it is a purely protective jurisdiction. So here too the purpose of the legislation and the purpose of an application, or an objection or a complaint, for that matter, relates not to a dispute as to competing rights between parties but as to whether ultimately it is in the public interest that a person be granted a licence or keep a licence or upon what conditions a licence should be granted or kept.
FRENCH CJ: A bit like the Supreme Court with legal practitioners?
MR SOFRONOFF: Quite, but nevertheless, your Honour, one must recognise ‑ and we do ‑ that traditional courts, supreme courts, do engage in functions that are not strictly judicial.
FRENCH CJ: They are judicial, but do not fall within that core area of the ascertainment of rights and liabilities according to established criteria and they are either incidental or historical?
MR SOFRONOFF: Quite, and they seem to be the two categories. One is historical, so ‑ ‑ ‑
KIRBY J: But if you are a legal practitioner before a court on a question of whether you have misconducted yourself, it does seem, I would think, to the practitioner concerned very much like a lis – the application to that person of established principles, albeit expressed in general terms, and the determination of that matter according to law in that particular case.
MR SOFRONOFF: Yes, nevertheless, as this Court held in Albarran, in the context of liquidators’ discipline, it is not an exercise of judicial power in that case.
KIRBY J: This is a very difficult line in the sand. It is a very hard line to see.
MR SOFRONOFF: We do not submit there is a line in the sand, your Honour.
KIRBY J: There has to be.
MR SOFRONOFF: No. We submit, your Honour, that upon a consideration of a number of factors, a judgment is made.
KIRBY J: Yes.
MR SOFRONOFF: We do not naively propose a line in the sand.
KIRBY J: Is it relevant to take into account that Mr Anderson in his report weighed up the possibility of a purely administrative solution and a court, and repeatedly expressed the opinion in the most emphatic terms that it was very important that it should be a court that heard these matters? I do not know if you have had a chance to look at Mr Anderson’s report.
MR SOFRONOFF: Your Honour means the Second Reading Speech?
KIRBY J: No, this was a Royal Commission that preceded the current form of the court arrangements.
MR SOFRONOFF: I am sorry, your Honour, I am not ‑ ‑ ‑
FRENCH CJ: There was a committee of review, I think, in 1985.
KIRBY J: Now Justice Anderson of the Supreme Court of this State.
MR SOFRONOFF: Your Honour, I am not familiar with what his Honour then said, but we would accept that a State legislature might consider that it is important in order to engender confidence in the public that a body have the trappings of a court and the designation of a court and, indeed, even for some purposes, the status of a court, but that will not answer the constitutional question of whether it is a court for the purposes of Chapter III. It will obviously be a factor, as it is here.
HAYNE J: Well, Mr Solicitor, a common form of contested matter in the Court would be, would it not, where there is objection. Is that right?
MR SOFRONOFF: Yes.
HAYNE J: And objection is provided for by section 77.
MR SOFRONOFF: Yes.
HAYNE J: Subsection (5) identifies the grounds.
MR SOFRONOFF: Yes.
HAYNE J: Do you say that that gives rise to no controversy of a kind that supports the view that the court is what its name suggests?
MR SOFRONOFF: Yes, I do, your Honour.
HAYNE J: The objector would ordinarily be held to the grounds of objection, one would think? The objector would ordinarily be expected to make the case identified in the grounds of objection?
MR SOFRONOFF: Yes. Section 77 relates to objections. An ancillary provision is 106, which relates to complaints. In the same category, really, is the complaints provision relating to disciplinary action which is contained in Part 8 and relevantly in 120. The difference between them is that an objector can evidently be anybody. A complainant under 106, relating to noise, 106(3), can only be somebody who has a petition from 10 people or the Commissioner and a complainant in a disciplinary matter can only be the Commissioner, the Commissioner of Police or a local council.
In each case, in my respectful submission, the task of the Licensing Court is not to determine whether a complainant or objector has rights which must be vindicated, but to determine whether there has been conduct on the part of the licensee such that it is requisite in the public interest to make an order which will take that into account. But there are no rights of an objector that are declared and, indeed, an objector or a complainant has no right except the right to make the objection or the complaint and, one would infer, although in the case of objectors and complainants in the disciplinary jurisdiction, although it does not expressly say it can be heard, one can infer that they would have to be heard.
KIRBY J: Do you accept that the Licensing Court of South Australia receives federal jurisdiction and from time to time exercises it?
MR SOFRONOFF: No, your Honour. Could I come to that? I need to deal with section 39.
KIRBY J: Because if you do, all of this is hypothetical and really not important. If it ever, even for a minute, exercises federal jurisdiction, it has to comply to the Kable standard.
MR SOFRONOFF: Well, it is not hypothetical.
KIRBY J: Do you accept that, that if it does ever exercise federal jurisdiction, it has to comply to the federal standard? Or if it may ever exercise federal jurisdiction, it has to comply with Kable?
MR SOFRONOFF: No, your Honour, but that question does not arise here for the reasons recounted earlier.
KIRBY J: Well, it may arise. It may arise
MR SOFRONOFF: Your Honour, as I understood my learned friend, the Solicitor‑General for the Commonwealth, to submit, he submitted that there is an investing of federal jurisdiction under 39(2) of the Judiciary Act. I want to come to that.
KIRBY J: Or more important, ultimately under the Constitution.
MR SOFRONOFF: Well, the Constitution, in my respectful submission, provides in section 71 that the judicial power is to be exercised by such other Courts as the Parliament invests, and then section 77 is the head of power under which the Parliament might pass a law investing. Jurisdiction in here, relevantly, the law is section 39(2). Could I not digress to there for the moment, your Honour. I will come to that.
FRENCH CJ: We are focusing at the moment on the question whether this is properly characterised as a court.
MR SOFRONOFF: Quite. Could I move on then in respect of that. I had not completed my answer to your Honour the Chief Justice. True courts may have functions that are functions in which rights are created and that might arise, it seems, by reason of two features. One is it is a traditional feature that has always been exercised and therefore it is accepted, and the second is that it might be a function conferred by statute as a function ancillary to the determination of a lease between the parties, and Cominos v Cominos is an example of that, where power to make a property settlement was regarded by this Court as a power, albeit to create rights, but one that was ancillary to a true judicial function.
If one then goes to the other functions of the Licensing Court. If we go to section 68(1), the licensing authority, the court, can approve an alteration to licensed premises or redefine them. No criteria are set out. Section 69, the Licensing Court could extend the licence so that the licensee is authorised to sell liquor in an adjacent place. Again, there are no criteria. Section 70(1), conditions, including trading hours, can be altered. Again, there are no criteria.
HAYNE J: Just going back to 69, subsection (3) contains the criteria, does it not?
MR SOFRONOFF: I am sorry, it does contain some criteria, your Honour, yes. Section 71A provides for the approval of crowd controllers. That contains a criterion in (2) and a further power in (3), but otherwise the discretion is not qualified, and section 71C, which relates to revocation of approval, confers upon the ‑ ‑ ‑
HAYNE J: It is all on the Commissioner, is it not?
MR SOFRONOFF: Confers upon the Commissioner an unqualified discretion.
HAYNE J: It is the Commissioner, it is not the Court.
MR SOFRONOFF: Yes, quite.
FRENCH CJ: Do you accept the equation of unqualified discretion to absolute discretion which renders that class of decision unreviewable?
MR SOFRONOFF: No, your Honour, it must be a discretion that must be exercised for the purposes of the statute.
FRENCH CJ: Yes, but there is a class of unreviewable decision which is characterised as ‑ ‑ ‑
MR SOFRONOFF: Quite, your Honour, within the meaning of this statute.
FRENCH CJ: That is right.
MR SOFRONOFF: Yes.
FRENCH CJ: You equate those two?
MR SOFRONOFF: They must be the same because the language of that particular provision is not repeated elsewhere. If one then goes, your Honours, to section 106, there is a provision for a person to make a complaint and that can be the Commissioner of Police, the local council or a particular person qualified by subsection (3). The result of the hearing of that is that the complainant has a right to be heard, subsection (6), but the outcome, subsection (6)(a), is the making of an order against the licensee resolving the subject matter of the complaint, including, if necessary, adding to or varying the conditions of the licence, that is to say, the orders that would be made would be orders affecting the rights or obligations of the licensee.
If one then comes to the disciplinary function in section 118 and following, section 120 provides that the only complainants can be official bodies set out in subsection (2). Section 119 sets out the proper cause for disciplinary action and in subsection (1)(a) to (d) there are objective standards provided, but subclause (e) invokes the public interest, which one would think would be relevant to be considered if only to be dismissed in almost every case.
If your Honours look at 119(2), one of the matters which the Court can take into account is evidence of conduct of persons with whom the person associates or has associated, as the Court considers relevant, including information that existed at the time, et cetera. There is no objective criterion by which the Licensing Court is guided as to the way in which it can use evidence of the conduct of other persons with whom the relevant person associated and, as your Honours appreciate, section 28A is invoked by the disciplinary procedure and that adds a further layer of conduct which is not conduct traditionally associated with a court deciding matters inter partes.
If one goes to section 121, the outcome of the disciplinary procedure is, with one exception, in our submission, administrative, that is to say, the person is affected by a change of conditions or disqualification or a suspension or something of that kind. The exception is 121(1)(c)(ii) which empowers the Licensing Court to impose a fine. That fine, that punishment, cannot be enforced, or that sanction cannot be enforced by the Court, but rather the order can be registered in the Magistrates Court or District Court, subsection (6).
Your Honours are familiar with Brandy, of course, and, in our respectful submission, what that case relevantly stands for as authority is that the Federal Parliament cannot pass a law which would authorise the creating of a judicial order in the Federal Court and which then takes effect as an exercise of judicial power without first preceding the making of that order by an exercise of judicial power. Your Honours will see a citation to that effect at 183 CLR 260.
FRENCH CJ: When you speak of issuing of licences and conditions it reminds me of things called extraordinary drivers licences that used to be issued – I do not know whether they still are – in magistrates courts upon the suspension of a driver’s licence and with such conditions as the court thought appropriate. Are you saying that is an administrative function?
MR SOFRONOFF: An administrative function, we would submit, yes. Public safety is involved and the magistrate must make a judgment about that.
FRENCH CJ: The fact there is a public interest criterion does not take anything out of the judicial role.
MR SOFRONOFF: No, of course not, your Honour, but where the public interest is in substance the sole determinate albeit in a context of traffic or licensing, as the case may be, does tend to suggest that the court can create – such a body can articulate and later continue to apply policy considerations as they emerge. However, your Honours, in our respectful submission, a statutory provision like 121(6) which makes provision for registration of an order made by this body does not have the effect of converting the body into a judicial body. What it did in Brandy was to impermissibly invoke judicial power at the instance of a non‑judicial body.
Here in the State context all that has happened is that there is legislative machinery to permit a true court to enforce orders made by a body which in our respectful submission is not a court and is demonstrably not a court because it has no power to enforce any of its own orders except the limited power under the disciplinary provisions.
Your Honours, could we refer your Honours to the decision of this Court in Albarran v Companies Board (2007) 231 CLR 350 in which there is a discussion about the nature of the disciplinary function and its relationship to the judicial power and equally the decision in Yanner v Minister for Aboriginal Affairs a decision of the Full Court of the Federal Court (2001) 108 FCR 543, particularly at 571 to 572 where there is a discussion about matters, like the matters that your Honour the Chief Justice was putting to me, which courts from time to time consider and their contradistinction with the function of bodies which are not courts.
In our respectful submission, your Honours, even if we are wrong and there is an element here and there of a judicial function then that would not of itself have the effect of converting this body which is predominantly an administrative one, that is to say, one that has administrative functions, into a judicial one. As Justice Kenny said in the case to which your Honours have been referred, Commonwealth v Anti‑Discrimination Tribunal (Tasmania) in the State sphere the fact that the body exercises judicial power does not provide a strong basis for its being a court, at least where that function is a small part of its overall function.
KIRBY J: Why do you assume that it is only a pure judicial body as a court of the State that is picked up by section 77(iii) and is protected by the Kable document?
MR SOFRONOFF: No, I do not, your Honour.
KIRBY J: Given that the state and the colonial courts before them did not have this division which has been read into the federal constitution, why would one not say, well, all right, it is a body which is mixed, it has these different functions, but it still for the purposes of the Constitution is a court of the state and it has to conform with certain basic steps, which steps are rather sensible steps required by the diverse nature of tribunals today, some of which are court‑like, some of which are purely administrative?
MR SOFRONOFF: We embrace that, your Honour. There are state courts which have important administrative functions which are nevertheless to be regarded as courts for the purposes of Chapter III. Magistrates court is the perfect example of that.
KIRBY J: Why would one not have in respect of such tribunal‑like courts the same rule, that you cannot have the Executive Government meeting privately with the decision‑maker, and if this is the case telling the decision‑maker certain things which the decision‑maker must act on in the exercise of independent power?
MR SOFRONOFF: Your Honour, we would submit that a proposition of that kind is a question begging proposition because first it assumes that something is a court despite the fact that it has a characteristic which is repugnant to courts.
KIRBY J: But if on the question I am putting to you that is the assumption I am asking you to make, that if it is assumed that administrative‑type courts of the states are still courts of the states because the states have called them that and they act in some respects as courts, and that they are picked up into the bosom of the protection of Chapter III. Why would one not say that given that there are many independent tribunal‑type courts nowadays, many?
MR SOFRONOFF: Because, in our respectful submission, that assumes an answer, and what one first has to do in order to determine whether the Commonwealth Parliament can invest a body with federal jurisdiction is to ask, is it a court, and if it is a court then it will be a court notwithstanding that it has a function that is repugnant to ordinary notions of a court.
KIRBY J: But is that not a view of the Constitution that is respectful of the states, their right to create courts if they wish, and their right to do so in an inventive manner, different from one to the other, simply take it on their face value? If they call it a court, it is a court.
MR SOFRONOFF: But, your Honour, how would one answer the question then? One would have a body that has a number of characteristics, some of which are appropriate to a court, some of which are not, but are neutral in the sense they are administrative functions, and some of which are repugnant to courts, for example, secret hearings of a particular kind.
In my respectful submission, one looks at the totality of those features and asks the question, is it given all of those features a court of the state? If the answer is “no” because of even the existence of one repugnant feature then it is not a court of a state. But one cannot say but for that feature it would be a court of a state, so we will declare invalid the provision of the constituting statute that confers that feature. Although the state legislature wished to have a court with all of those features – have a tribunal state court for its purposes, having all of those features, it is not permitted to. It can only have an inferior court insofar as its legislation is not repugnant to the Kable principle.
FRENCH CJ: What you are doing here, I take it, is to suggest there is a sort of constellation of provisions one looks at when one looks at all of the provisions of the Act and the functions of the Liquor Licensing Court and makes some kind of evaluative – I am not going to your second string position now which is based on the self referential Kable hook – but you make some sort of evaluative assessment as to whether this is a court for the purposes of Chapter III?
MR SOFRONOFF: Yes.
FRENCH CJ: One looks at the predominance of what you would characterise as administrative functions in so doing.
MR SOFRONOFF: And other matters, yes. Your Honours, there are some judicial like functions conferred upon the court here and some other provisions which would tend towards a decision that this is a court. Of course, section 13 provides that the court is a court of record, which is not to be ignored. But, as your Honours Justices Gummow, Hayne and Crennan pointed out in Forge at page 75, the description given by State legislation to a body does not conclude the constitutional question. There is the designation of the members of the court as judges in section 15. There is, it was said, submitted against us in section 27 ‑ ‑ ‑
GUMMOW J: Does section 13 carry a contempt power?
MR SOFRONOFF: Well, your Honour, we submit not for this reason. The Magistrates Court Act 1991 (SA) and the District Court Act 1991 (SA) each designate those courts as courts of record. Each make express provision for a contempt power. In the Magistrates Court it is section 45 and it is limited to contempt in the face of the court. In the District Court Act it is section 48 which confers a power to deal with contempt “the same as the Supreme Court” and each of those courts is expressed to be a court of record.
This body is styled a court of record, but it is not granted an express statutory power to deal with contempt. In our respectful submission, the answer then, if there were to be conduct which would otherwise constitute contempt, is for an application to be made to the Supreme Court of South Australia ‑ ‑ ‑
GUMMOW J: You may get some support from Pelechowski I think in this Court.
MR SOFRONOFF: Yes, your Honour.
GUMMOW J: It is a case from the New South Wales District Court I think from memory.
MR SOFRONOFF: I was also thinking of Muirhead in which I think the Workers Compensation Tribunal was held to be a court for that purpose after looking at its features. Here if somebody moved the Supreme Court of South Australia on a motion for committal for contempt, then the provisions of Division 2 of the Act would be a powerful and, in our submission, overriding factor in favour of a jurisdiction to protect this body by the inherent jurisdiction of the Supreme Court. But it does not have a power to deal with contempt expressly and given the express provision in other courts which are styled similarly – I mean the Magistrates Court and District Court, styled courts of record – given the express provisions there, in our respectful submission, one would not infer that there is an inherent jurisdiction merely because of section 13.
Your Honours, there are some judicial like functions, as I was saying. Section 24 contains powers that compel the giving of evidence, but that, we submit, while it is often found in courts is also often found in purely administrative bodies. Even in this Act section 19 confers similar powers upon the Commissioner and of course Royal Commissioners always enjoy those powers too. Could I turn to what the court does not do and does not have. It has no jurisdiction to hear trials of offences against the statute, but there are offences against the statute. Examples are in sections 131, 131A and 132. I have dealt with the power to punish for contempt.
Could I refer your Honours to an article by Professor Enid Campbell. It is entitled “Inferior and Superior Courts and Courts of Record” (1997) 6 Journal of Judicial Administration 249 and she deals there with the contempt issue. There is, as your Honours have already noticed ‑ ‑ ‑
FRENCH CJ: It is not unusual to have a division, is it, between the roles of courts in respect of regulatory statutes and punishment for offences against those regulatory statutes? I am thinking, for example, there are offences created under the Trade Practices Act. Now, the Federal Court has jurisdiction in relation to pecuniary penalties, but there are other offences of a criminal character which should be dealt with, no doubt, in a magistrates court or ‑ ‑ ‑
MR SOFRONOFF: Yes, or in the Federal Court, one would think, unless ‑ ‑ ‑
FRENCH CJ: Not prosecutions of that kind. I think there are lot of those things that come up, too.
MR SOFRONOFF: Quite, but the relevance of it here, your Honour, is that unlike the Federal Court, which undoubtedly has judicial power, this body ‑ ‑ ‑
FRENCH CJ: It is not much of a weight in the balance in characterisation, is it?
MR SOFRONOFF: We would accept that it is a weight in the balance, your Honour; that this court does not enforce its own orders and cannot enforce breaches against the statute which creates it in respect of the rights and obligations which it confers. So it is a factor.
HEYDON J: Which statute does tell us which court can hear criminal proceedings for breaches of 24(2) or the ones you mentioned?
MR SOFRONOFF: Your Honour, I cannot answer that, except that undoubtedly it would fall into the district or magistrates court depending upon the limit of jurisdiction of the magistrates court. Your Honour will see the general offences provision in section 132. It looks like a magistrates court level of jurisdiction and the local Justices Act, under whatever name it was enacted in this State, would undoubtedly apply.
Your Honours have already noticed that there is no security of tenure. Section 15, that may be less of a weighty factor in the context of a District Court Judge who enjoys security of tenure otherwise as a District Court Judge and in respect of whom one might not think a threat of removal involves anything other than less work, but it might be otherwise in respect of other persons; former District Court Judges who are appointed, who might be removed at will. There are two sets of judicial dicta in relation to this. Could I refer your Honours to the reasons of Justice Kenny in Commonwealth v Anti‑Discrimination Tribunal (Tasmania) at page 141, paragraph 233 and 144, paragraph 243? At page 141 at paragraph 233, her Honour observed, in the second half of that paragraph:
I accept, however, that, a tribunal that owes its existence to a Ministerial determination under a modern statute, the members of which may be removed at any time by the Minister at will, is unlikely to be a “court of a State” within s 77(iii) of the Constitution. In order to be a “court of a State” for this purpose, for a tribunal such as this, there must be some legislative or constitutional provision for tenure of some kind, precluding removal from office merely because the executive desires it.
Over at page 144 – I will not read it or refer to it in detail, but her Honour deals with the reasons of Justice Heerey in Wood 148 FCR 276, where his Honour had concluded that although the members of the tribunal can be removed at will, there was provision for judicial review, which was a sanction of sorts which might be thought to give the public confidence in the tenure of these members, and secondly, his Honour adverted to public opprobrium that might meet a peremptory removal. As her Honour points out, the attitude of the public might depend upon whether the decision which might have provoked the removal was popular or unpopular, and her Honour deals with the judicial review at the top of page 145 in paragraph 245 and concludes that it is not much of a safeguard.
HEYDON J: Section 15 is different from what her Honour is talking about. Section 15 does not permit the Governor to remove the judge at will. It provides only for a short term or a fixed term.
MR SOFRONOFF: But, your Honour, 15(1)(c) permits the Governor to revoke a proclamation. Your Honour, our learned friend, the Solicitor‑General for the Commonwealth, handed up the history of the Licensing Act. What is interesting, just to give your Honours a context, the 1839 Act involved persons who are magistrates or justices to meet as a bench to determine whether to grant or not grant licences. We can pass over the 1908 Act and the 1932 Act, but when one comes to the 1967 Act, section 5 made provision for tenure.
The Licensing Court was to be a court of record. Subsection (3), the Governor was to appoint a Local Court judge to be chairman. The chairman would be appointed on certain terms and conditions provided that the chairman was not to be removed before the age of 65 except upon an address. Then thereafter, in the 1976 Act, section 4(4) also provides for ‑ ‑ ‑
KIRBY J: It might be to the extent that State Governments or Parliaments for various reasons decide to set up bodies which they call courts and give the rank and title of judge of the court to persons, although they do many administrative functions. I can see very strong constitutional reasons why this Court would take them at their face value and say, well, you call them courts, you call them judges, they will behave as judges.
MR SOFRONOFF: Your Honour, I understand that. With respect, I understand that.
KIRBY J: Otherwise, we would then be condoning the debasing of the notion of the title of judge and of the function of judge in the eyes of the community in a way that would be against the best interests of the judicature as a whole and their service to the community, the people.
MR SOFRONOFF: Your Honour, with respect, that is a powerful consideration, but equally, with respect, it cannot be as simple as that, because it would follow that once a state legislature designates a body to be a court and styles the members of that body judges, then for constitutional purposes it ‑ ‑ ‑
KIRBY J: I agree there is a characterisation for 77(iii) purposes that still remains to be done, but what I am saying is you would start from the assumption that if the Parliament of a State calls them courts and calls them judges, that is what they are for constitutional purposes and you have a pretty strong reason to establish that they are not.
MR SOFRONOFF: Your Honour, undoubtedly the designation of a body as a court of a State in the way that has been done here in sections 13, 14 and 15 is a powerful consideration, but our submission is that it is but a consideration. Your Honours, could I deal briefly with the manner in which the court is to carry out the functions which it does carry out. Your Honours are aware that section 23 provides that the rules of evidence do not apply.
FRENCH CJ: At one stage the Native Title Act made such a provision in respect of the Federal Court, I think, in hearing native title cases. However, it is tweaked in such a way now that they do apply unless the court otherwise decides.
MR SOFRONOFF: This goes on to say that the court can inform itself as it thinks fit which, subject to the rules of natural justice, involves an element of the inquisitorial and, of course, in carrying out its functions, section 28A is not to be ignored and the complaints ‑ ‑ ‑
FRENCH CJ: The rules of evidence have a way of sneaking back in, do they not, through considerations of rationality and lawfulness, and Enid Campbell wrote an essay about that many years ago, I think, in a collection called “Well and Truly Tried”.
MR SOFRONOFF: Well, that makes sense, your Honour, as we know ‑ ‑ ‑
KIRBY J: Well, lawyers think they make sense.
MR SOFRONOFF: Well, your Honour, I was about to say, as we know, on the surface, sometimes the outcome appears to be unjust but there are deeper reasons and the outcome is generally just, although in that particular case hard, so undoubtedly because we are familiar with them we tend to wish to apply them because they do actually make sense.
KIRBY J: Often they protect natural justice considerations.
MR SOFRONOFF: Quite. Your Honours, could we submit then that the focus on the authorities is upon the manner in which and the subject matter upon which the relevant body operates, and here the subject matter is the creation of rights, the creation of corresponding obligations in the licensee, the monitoring of the carrying out of those obligations by a disciplinary process but not by a criminal process, and the manner in which those functions are to be carried out are largely discretionary, to some degree guided by, informed by objective criteria, but to a large extent not?
The purpose of these functions and the purpose of conferring the powers to carry them out in the particular ways contained in the statute is to regulate the supply of liquor to the public in the public interest, not to regulate the rights of parties inter se, and in our respectful submission, if that submission were accepted that would conclude the question whether this is capable of being a Chapter III court.
Could I turn to section 39(2), your Honours? If I could ignore the subparagraphs, 39(2) invest “Courts of the States” which raises the question, is a body a court, and that has to be answered, and invest them with federal jurisdiction in certain matters. As to those matters, one turns to sections 75 and 76. Section 75 of the Constitution firstly relates to matters, in our respectful submission, none of the business of the Licensing Court involves a matter.
Secondly, and in any event, none of the business of the Licensing Court is likely to involve a treaty, a consul, the Commonwealth, which would not need to apply for a licence.
GUMMOW J: It might object to someone else getting a licence. though.
MR SOFRONOFF: Sorry, your Honour?
GUMMOW J: It might object.
MR SOFRONOFF: Quite, it might object, yes. But it would not then be a party to a matter. It would be an objector before the Licensing Court ‑ ‑ ‑
KIRBY J: I thought we were told yesterday that objectors are made parties by the statute.
MR SOFRONOFF: No, your Honour, complainers are made parties by the statute, not that that matters because ‑ ‑ ‑
KIRBY J: Could the Commonwealth be a complainer?
MR SOFRONOFF: No, because it would need to be – excuse me, your Honour ‑ ‑ ‑
KIRBY J: Which is the complainer section?
MR SOFRONOFF: It does not matter, your Honour, because whether they are expressly made parties or not, undoubtedly the Act contemplates a complainer and objector and so on having a right to be heard, so whether they are expressly called parties or not they are going to be there.
HAYNE J: It is the objection that makes the matter a contested matter that comes out of the Commission and into the court.
MR SOFRONOFF: It makes it a contested application, but there is no matter between the parties with respect to pre‑existing rights to be determined according to legal principle.
KIRBY J: Well, that is your first argument, but assume that that is overcome. The next question is, are any of the constitutional, even one of them, attracted, and the clearest one seems to be the next one that you are tarrying over, (iv).“residents of different States” because it would not be at all unusual, one would think, if assuming it to be a matter, that it is a matter between “residents of different States” before the State tribunal. It could happen.
MR SOFRONOFF: Your Honour, I am just looking for the provision relating to objections.
KIRBY J: Which section?
MR SOFRONOFF: Section 77, your Honours. It would be difficult to imagine the Commonwealth falling into the category ‑ ‑ ‑
KIRBY J: Why, if it has the building next door? It could quite easily happen.
CRENNAN J: Commonwealth places nearby or next door, as Justice Kirby said.
KIRBY J: There are Commonwealth buildings springing up all over this city. They are usually the most prosperous, newly built.
MR SOFRONOFF: We are in one, your Honour.
KIRBY J: The State courts scramble for shacks, the Commonwealth has beautiful buildings. There is no court in this nation that is more beautiful than this court.
FRENCH CJ: The aesthetic considerations are a bit of a distraction here.
MR SOFRONOFF: Your Honours, I do accept that the Commonwealth, or a body which is the Commonwealth for relevant purposes, might be an objector but that does not constitute the Commonwealth, a party to a matter between itself and the putative licensees. I am reminded that even under planning legislation the Commonwealth can become an objector to applications without invoking federal jurisdiction if what is being exercised is an administrative function, as we contend this is in every relevant respect.
KIRBY J: Do you accept that for the purpose of a constitutional word the preposition “between residents of different States” in section 75(iv) picked up by section 39(2) of the Judiciary Act would be given a very wide meaning?
MR SOFRONOFF: I would have to think about whether it would follow that it would be given a very wide meaning, but I understand ‑ ‑ ‑
KIRBY J: We cannot get a concession out of you, Mr Solicitor.
MR SOFRONOFF: I make them when they are right to be made, your Honour, but we do not concede ‑ ‑ ‑
FRENCH CJ: The way 39(2) operates is to confer jurisdiction with respect to a matter on a court.
MR SOFRONOFF: Yes.
FRENCH CJ: The argument that you are presently addressing is about the nature of the functions that the Licensing Court carries out and so those functions do not of themselves give rise to matters.
MR SOFRONOFF: Yes.
FRENCH CJ: That is a distinct question from the question whether it could exercise, if an issue arose, federal jurisdiction. There might be, for example, an argument about the application of Commonwealth heritage or environment legislation which feeds into the public interest issue. There might be an objector in the way of the Commonwealth or a Commonwealth authority or even a private party invoking that legislation. Now, whether or not that constitutes a matter would depend upon the circumstances of the particular case perhaps, but the antecedent question comes back to your primary argument, is this a court or not, and I do not think we should elide them, should we?
MR SOFRONOFF: No, your Honour is correct, with respect, in distinguishing them. My purpose in going to section 39, thought, is to answer the submission by the Commonwealth Solicitor‑General that there is already conferred upon this body federal jurisdiction.
FRENCH CJ: If it is a court.
MR SOFRONOFF: If it is a court, yes.
FRENCH CJ: That is the end, yes.
MR SOFRONOFF: Your Honours, in summary, we submit that the Licensing Court is not a court within the meaning of Chapter III, although it is a court for other State purposes, and although it might be a court for the purpose of section 51(xxiv) ‑ ‑ ‑
KIRBY J: You want all the advantages of the federal Constitution but none of the burdens.
MR SOFRONOFF: We come here, your Honour, and we try to get them, but ‑ ‑ ‑
GUMMOW J: Mr Solicitor, so that I can remain calm, could you look at the definition of “party”?
MR SOFRONOFF: “Party” in the Act?
GUMMOW J: Yes. It includes “an intervener or an objector”.
MR SOFRONOFF: Thank you, your Honour.
GUMMOW J: If we had been told that at quarter past 10, we might have had a more restful morning.
MR SOFRONOFF: Yes, your Honour.
GUMMOW J: We should not be left to scramble around and find these things for ourselves.
MR SOFRONOFF: No. Thank you, your Honour. Your Honour, in summarising, in our respectful submission, the court is ‑ ‑ ‑
GUMMOW J: So much for the submissions about lack of a matter.
MR SOFRONOFF: No, your Honour. Because they are described as a party in the statute ‑ ‑ ‑
GUMMOW J: Parties have a right to get to the Supreme Court, do they not, if dissatisfied with a decision of the court?
MR SOFRONOFF: They can appeal to the Supreme Court, but the matter ‑ ‑ ‑
GUMMOW J: Thence to this Court actually.
MR SOFRONOFF: And thence to this Court. Nevertheless, the subject matter of the proceedings before the Supreme Court will not be the administrative function carried out by the Licensing Court. It will be a review upon a – I was going to say upon a rehearing – and there will be some aspects upon which the court could draw a conclusion in relation to whether there was an error by the Licensing Court in making a finding relating to objective criteria, but it would find it difficult to apply some of the broad discretions, as your Honours have seen.
HAYNE J: Some of the difficulties that are presented by interveners in your position, Mr Solicitor, urging the upholding of the decision below on grounds other than those advanced by the parties may in future – I speak only for myself – have to be addressed by having regard to the assertion of the interveners to be parties and the consequence which may or may not flow under the rules of an obligation to put on a notice of contention in which the point is articulated with some care and some precision rather than to allow the argument to develop in the course of written submissions in which we are left to scramble around the legislation to discover for ourselves the provisions that are relevant to the new contention advanced by the intervener.
MR SOFRONOFF: Your Honour, we endeavoured to expose all of our contentions in our written outline and what I sought to do this morning was to develop those by way of answer to some of the matters raised by the Commonwealth yesterday. Your Honours, in conclusion, in our respectful submission, undoubtedly the designation of the Liquor Licensing Court as a court will have effect within South Australia for some purposes, perhaps the Appeal Costs Fund Act purposes and probably for reasons concerned with the supervisory jurisdiction of the South Australian Supreme Court, but it does not answer the description of a Chapter III Court and as a consequence the Kable principle being a principle which is applied to protect the essential characteristics of the Court would have no application to it. Those are our submissions, your Honours.
FRENCH CJ: Thank you. Solicitor‑General for Victoria.
MS TATE: May it please the Court. Might I begin by indicating that our submissions are confined to a narrow issue, namely, that we invite attention to the nature of the particular power under section 22 of the Act that was exercised by the Licensing Court in the circumstances of this case. Might I first, however, clarify our general position. For the purposes of the argument to this Court we do not contest and never have contested that the Licensing Court is a court of a State, nor do we contest that all of the functions performed by the Licensing Court are administrative.
We would submit that the functions are predominately administrative but we accept that the Licensing Court exercise some judicial power and, as Justice Gummow mentioned in yesterday’s hearing, of course the provisions in relation to the disciplinary proceedings, particularly the capacity of the court to impose a fine in relation to disciplinary action taken which is under section 121(1)(c)(ii), and I will not take your Honours to it, but also the curial enforcement of those fines under section 121(6), although that form of enforcement is not mandatory, suggests that the Licensing Court does indeed exercise some judicial power.
The argument that we intend to canvass is an argument which sits against the background of an assumption for the purposes of these proceedings that the Licensing Court is a court of the State. We do not accept its status as a court of a State beyond that concession for the purposes of our argument here.
KIRBY J: That is to say, a court of the State for the purpose of section 77(iii) of the Constitution.
MS TATE: For the purposes of section 77(iii), your Honour.
KIRBY J: Is your argument in any way different from the argument that Mr Solicitor for Queensland has just put before us?
MS TATE: Very different, your Honour. As I say, we do not contest for the purposes of our argument that it is a court of a State.
KIRBY J: I did not understand the Solicitor for Queensland to contest that within its own paradigm for some purposes if the Licensing Court called itself a court, it was a court, but he kept saying your job is to characterise it for the purpose of the Constitution and do not accept on face value what they say in the statute because that is just for local State purposes.
MS TATE: No, your Honour, to clarify, we do not contest here that the Licensing Court is not a court of the State under section 77(iii). We can accept that the character of the institution, it is a curial character, it is a court of the State within the substantive constitutional meaning.
KIRBY J: Well that is a different position.
MS TATE: It is a very different ‑ ‑ ‑
KIRBY J: How does that touch then on this case?
MS TATE: It bears in this way, your Honour, that the submissions we wish to make are modest submissions. They are submissions only in relation to the nature of the particular power that was here being exercised under section 22.
KIRBY J: But once it is a court of the State for the purpose of 77(iii), it is picked up and brought into the bosom of Chapter III and it then just has to comply with all the requirements that Chapter III imposes on it. It must be a suitable receptive to a federal jurisdiction.
MS TATE: Yes we accept that, your Honour.
KIRBY J: Do you accept that it may from time to time exercise federal jurisdiction?
MS TATE: Yes, your Honour.
KIRBY J: So there is no doubt it has to comply with the Kable principle.
MS TATE: Yes, your Honour, we accept that it must comply with the Kable principle. The question we wish to address is whether the application of section 28A(5) to a hearing, a rehearing, under section 22 of the Act infringes the Kable doctrine. It is our argument that it is significant to consider the very nature of the power that is being exercised. The nature of that power, your Honours, is a power of rehearing or review on the merits of the refusal of an application for an entertainment venue licence by the Licensing Commissioner.
The order that was made as a result of the exercise of that power was twofold. This is to be seen at appeal book page 19. The results of the exercise of the power by the Licensing Court was firstly to affirm the Commissioner’s refusal to grant an entertainment venue licence and, secondly, a substantive refusal by the court itself of the application for that licence. The result of the order was that the licence was refused.
We make three submissions about the nature of the power exercised under section 22. First, we submit that the power is administrative and not judicial. Secondly, we submit that it is inherently administrative, that is, it is not a power that is capable of transformation or conversion into a judicial power, depending upon the character of the repository of the power. It is not an innominate power that takes its character from the institution in which it is vested, rather, it is our submission that it is in essence an administrative power. Thirdly, we submit that there are significant consequences which flow from the characterisation of the power as inherently administrative.
In short, we say that it is more difficult to challenge the power under section 22 on the ground that it has involved a departure from the judicial process. We submit that the exercise of the power under section 22 should not be measured against the standards of judicial process, but against the exercise of administrative power in relation to well accepted rules of administrative law, namely, that the obligation of natural justice can be modified or excluded. We will seek to address each of those three issues in turn.
Might I come then to the first strand of our argument, namely, that the power is administrative. Here we point to the absence of any objectively ascertainable standard that the Licensing Court is intended to apply in determining whether or not to grant a licence. Now, your Honours have already been taken to section 53(1a) of the Act, but if could take your Honours to that subsection again the subsection provides:
An application must be refused if the licensing authority is satisfied that to grant the application would be contrary to the public interest.
“Licensing authority” is defined under section 4 to include both the Licensing Commissioner and the Licensing Court. It is our submission that the broad ranging policy considerations that are relevant to the exercise of the power by reference to the consideration under 53(1a) is such that it is comparable to the power that was definitively characterised as non‑judicial by this Court in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Limited (1970) 123 CLR 361. If I could hand a copy of that judgment to your Honours. I have already handed a copy to my learned friends.
The case concerned in particular section 49 of the Trade Practices Act and the terms of that are to be found at page 379 in the judgment of Justice Menzies where it is provided that in certain proceedings under another section:
after such inquiry as it considers appropriate having regard to the matters alleged by the Commissioner, if it is satisfied that an examinable agreement exists or has existed, or an examinable practice has been, is being or is proposed to be, engaged in –
and that is referred to later as the preliminary point –
shall make a determination by which it –
(a)records its findings . . .
(b)determines, in accordance with its opinion, whether the relevant restrictions to which the proceedings relate are contrary to the public interest or, as the case may require, whether the examinable practice is contrary to the public interest.
In considering a provision of that breadth Justice Kitto at page 376 in discussing the question of the preliminary point in the determination then to be made at about point 7 of the page his Honour said:
the power which the Tribunal may exercise if satisfied on the preliminary point is to determine, “in accordance with its opinion”, a question that is essentially non‑justiciable. I so describe it for the reason that it does not depend upon the application of any ascertainable criterion. The Act requires the Tribunal in considering the question of the public interest to make a basic assumption and to take certain matters into consideration, but the question upon which it has to pronounce is not as to whether the relevant restriction or practice satisfies an ascertained standard but as to whether it satisfies a description the content of which has no fixity – a description which refers the Tribunal ultimately to its own idiosyncratic conceptions and modes of thought.
Your Honours will see over on the following page which I will not read there is a mention of the Tribunal necessarily having to supply for itself – and this is at about point 4 – it own subjective criterion for deciding” whether a matter “is contrary to the public interest”. Now, of course, this is not to deny that there will be some cases in which there will be policy considerations that must be taken into account in the exercise of judicial power.
The problem arises, in our submission, when the breadth of the discretion deprives the standard of any fixity of content, as Justice Kitto said, when there is no guidance as to how it is to be exercised other than by reference to the subject, scope and purpose of the legislation. If I could refer your Honours in support of that proposition to Attorney‑General (Cth) v Alinta Limited 82 ALJR 382 and it is in the materials book for the second respondent, volume 1 at page 65. If I could refer your Honours firstly to paragraph [14] in the judgment of Justice Gummow and the final sentence in that paragraph where your Honour identifies the vice that would lie here and your Honour says:
the entrusting to the Panel of authority to alter . . . the law otherwise applying in the particular case, to create new rights and obligations, and to do so with regard to considerations of policy which are identified only by reference to the subject, scope and purpose of the legislation.
Your Honour, Justice Crennan mentioned before that any of the discretionary powers conferred upon the Licensing Court would need to be exercised under the guidance provided by section 3, which provides the purposes of the legislation. In our submission, the reference to the subject, scope and purpose of the legislation is insufficient to render such a discretionary power a judicial power. If I could also refer your Honours to the judgment of Justice Crennan and Justice Kiefel in Alinta at paragraph [168] which is at page 98 of the materials book where your Honours say that:
Policy considerations are more often regarded as applying to a non‑judicial process of decision‑making. This is not to say that statutes do not sometimes require the courts to have regard to the public interest. Whether it is possible for a court to do so, consistent with its function, may depend upon what guide is given by the statutory context and stated criteria. Where policy considerations relevant to the public interest are ill‑defined and subjective, their application may be regarded as inappropriate to the judicial method and more consonant with a non‑judicial process of decision‑making.
And at the beginning of paragraph [169]:
The considerations relevant to the Panel’s decision point to a non‑judicial function being undertaken.
Clearly in that case that operated so as to preserve validity. It is our submission that the same breadth of discretion is to be found in section 53(1) of the Act. It seems not to be contested, certainly by the Commonwealth, that this subsection fails to supply any objectively ascertainable standard; the subsection providing that:
the licensing authority has an unqualified discretion to grant or refuse an application under this Act on any ground, or for any reason, the licensing authority considers sufficient –
Subject to one exclusion. The only question seems to be whether this discretion is unreviewable by reason of section 22(2) of the Act which excludes from the review power of the Licensing Court any power of the Licensing Commissioner which can be exercised by means of an absolute discretion.
It is our submission that section 22(2) should be construed as referring only to those discretionary powers of the Commissioner which are expressed in terms to be absolute and there are two of those powers within the Act. Section 11(c) which is a discretionary power to disclose. It is a discretionary power in the Commissioner to “disclose information gained in the course of the administration of this Act”. It can be disclosed under paragraph (c):
in a form that does not identify the person to whom it relates – to any other person, or in any other way, the Commissioner (in the exercise of an absolute discretion) considers appropriate in the public interest.
The other power is section 77(3), your Honours, and if I could take your Honours to that section. This is a section which concerns the acceptance of objections which have been lodged out of time and that provides that:
the licensing authority may (in its absolute discretion) accept an objection even though it is lodged, or served on the applicant, out of time.
FRENCH CJ: You accept there is no difference in content between what is called an unqualified discretion and an absolute discretion in terms of the range of freedom of movement limited by reference to the scope of purposes, et cetera, of the statute and that the term “absolute discretion” is used simply as a label to hook into 22. Is that the way you would put it?
MS TATE: Your Honour, we say section 22(2), which accepts certain decisions of the Commissioner from review by the Licensing Court, ought to be construed on its terms and those terms are that the exception relates to decisions made by the Commissioner on a subject on which the Commissioner has an absolute discretion.
FRENCH CJ: It is really what is called in this Act an absolute discretion?
MS TATE: Yes, your Honour. We also point to the fact that 22(2) makes reference to a subject on which the Commissioner has an absolute discretion ‑ a decision on a subject ‑ and the terms of 53(1) do not, as it were, amount to a particular subject matter of a decision. It is rather a consideration to be taken into account in the exercise of a discretion. It is a guidance for the exercise of discretion rather than a decision on a particular subject matter, such as whether or not an objection can be accepted even though lodged out of time.
A further feature, in our submission, that supports the characterisation of the power as administrative is the requirement under section 56(1) that:
An applicant for a licence must satisfy the licensing authority‑
here the Licensing Court, under 22:
that the applicant is a fit and proper person to hold the licence;
and the factors to be taken into account for determining whether the person is a fit and proper person are identified under section 55(1) and they include:
reputation, honesty and integrity . . . of the person; and
of the person’s associates. Our submission is not that this form of assessment is a matter which is entirely foreign to the exercise of judicial power. We point to this as simply another feature which cumulatively suggests that the power being exercised under section 22 is an administrative power.
There are two further features of the power that render it administrative, in our submission. First, we invite attention to the very subject matter of the power that is being exercised. Here the rehearing by the Licensing Court was a rehearing of an initial application for an entertainment venue licence. An entertainment venue licence is provided for the defining characteristics of it under section 35 and it includes that the business must be predominantly that of the provision of live entertainment. So the very subject matter of the power here is an initial application for a trading or commercial licence.
Historically, the conception of a trading, commercial or occupational licence in a context of an initial application has been considered to be one in which there is no prior claim of right and has been ‑ ‑ ‑
FRENCH CJ: That feeds into procedural fairness requirements, does it not?
MS TATE: Yes, exactly, your Honour. Might I support that, your Honour, by referring your Honours to the judgment of Justice Mason in FAI v Winneke 151 CLR 343, and it is at the second respondent’s materials book in volume I, 225. At page 235 of the materials book, page 361 of the judgment – Justice Mason in fact at 360 begins at about point eight, point nine of the page, Justice Mason says:
It is now authoritatively established that the exercise of a power revoking a licence will attract the rules of natural justice, certainly when the revocation results in the loss of a right to earn a livelihood or to carry on a financially rewarding activity. On the other hand, there has been a greater reluctance to insist upon the application of natural justice when power is exercised to grant or refuse an initial application for a licence. Generally speaking, in such a case the issues are not clearly defined; they often involve policy issues; and, though they raise the general suitability of the applicant to hold a licence, they do not often generate allegations of past misconduct.
Now, to similar effect Justice Aickin at page 377, at 232 of the second respondent’s materials book, considers first of all the case of a cancellation or a refusal to renew a licence and the implications that that has for the obligations of natural justice. Then he says:
At the other end of the scale it requires most unusual circumstances to warrant the view that upon an initial application for a licence which is not one which the relevant authority must issue as of course upon the compliance with specified procedures, there is a duty to provide a hearing. Such licences rest in the discretion of the licensing authority and are not often the subject of clearly prescribed criteria upon satisfaction of which the grant of a licence must follow as of right . . . In a case where the criteria are not prescribed in detail and where matters of policy may be involved, the situation is unlikely to warrant the drawing of the inference that there is some entitlement to a licence or some entitlement to a hearing before a licence is refused.
Now, we rely on those passages, your Honour, to indicate not only that historically applications for an initial licence have been treated as something which has been more of the nature of a request for a privilege and therefore not attracting any obligation of natural justice. Of course, we accept that now in most cases even an initial application for a licence will be seen to ground a form of legitimate expectation and the obligation will be attracted. But we say historically the significance has been attached to the fact that it is an initial application for a licence rather than an application for renewal or a circumstance in which a licence is being revoked.
We also rely upon those passages to indicate that when an application is made for an initial licence, there is no existing claim of right. Rather, the obligations and rights are created and they are created in consequence of the licence being granted. Now, the failure to determine an existing claim of right was emphasised by your Honour Justice Hayne in Alinta, to which I have already referred your Honours. It is the second respondent’s materials book volume I, 65 at page 80. There at paragraph [71] your Honour in referring to Precision Data said:
This Court held, in Precision Data, that the decision to be made under s 733 was “not an adjudication of a dispute about existing rights and obligations”. The object of the inquiry and determination for which the law provided was “to create a new set of rights and obligations, that is, rights and obligations arising from such orders as the [Corporations and Securities] Panel may make in a particular case, being rights and obligations which did not exist antecedently and independently of the making of the orders”.
Now, of course, again we accept that in some circumstances in the exercise of judicial power there will be the creation of new rights, and that was acknowledged in Precision Data itself, but, in our submission, that is when that creation of new rights occurs by reference to an objective standard, whereas here there is no such objective standard or test prescribed by the legislature, then the failure of the power under section 22 to consist in an adjudication of dispute about existing rights and obligations is another factor, we submit, that is significant in the characterisation of the power as non‑judicial.
Might I turn then to the second limb of our argument, namely, that the power being administrative is not capable of transformation by reason of being exercised by a court? Here this submission is made against the background that we accept for these purposes that the Licensing Court is a court of the State within the meaning of section 77(iii) of the Constitution.
On the question of transformation we take the following propositions to be uncontested. Firstly, that a power can only change its character between judicial and administrative repositories when it is capable of being both, that is to say, when it is an innominate power which must inhabit the borderland between administrative and judicial powers. Authority for that proposition comes from the judgment of Justice Isaacs in Federal Commissioner of Taxation v Munro 38 CLR 153 at 175 to 9.
A further proposition which we take not to be contested is that the chameleon doctrine does not go so far as to suggest that the mere fact that Parliament has elected to assign a decision to a judicial or administrative body is conclusive of the character of the power. For that proposition we refer to your Honour Justice Kirby’s judgment in Alinta at paragraph 37. We submit that that proposition is a fortiori here when one is considering a state court which is capable of exercising both judicial and non‑judicial powers as federal courts are not.
The third proposition that we take to be uncontested is that historical or traditional factors in the characterisation of a power are significant. Indeed, this was one of grounds for the conclusion in Cominos v Cominos 127 CLR 588 that section 86 of the Matrimonial Causes Act was judicial, that that power empowered the settling of property after the dissolution of a marriage. It was held to be judicial in part because it had long been exercised by the courts. Support for that is to be found in the reasoning of Justice Stephen at page 605 and the reasoning of Justice Mason at page 608.
Here we submit that the historical factors work against conversion because traditionally licensing powers have been classified as administrative and not judicial powers. Thus, with respect to the power of review under section 22, we submit that it is not susceptible to transformation, in particular, because of the breadth of the discretion and the wide policy base subjective criteria to be applied.
We submit that there is here no indicia supporting the character of the power as judicial except for the character of the institution on which the power has been conferred, and we submit that that is insufficient. Furthermore, we submit that the role to be played by the chameleon doctrine is impermissible here. Where the doctrine applies, it applies to support validity and not the opposite, as your Honour Justice Gummow observed in Alinta at paragraph 10. Here the chameleon doctrine would operate to render section 28(5) at risk of invalidity rather than the converse.
Now, against the background of those observations, can I turn to the third and final part of our submissions with the intention of demonstrating that a consequence of characterising the power under section 22 as inherently administrative is that the validity of section 28(5) in its application to a power under section 22 can be preserved more readily than if the power is characterised as judicial.
Might I indicate first that we accept that the ultimate test of whether or not the Kable doctrine is infringed is whether the conferral of the power affects the nature of the institution. Nevertheless, we say that the nature of the specific power being exercised may be relevant and is here relevant in determining whether the Kable doctrine has been infringed.
To speak of the Kable doctrine in general and amorphous terms shields the need for complainants properly to identify the substance of the complaint. It is our submission that a challenge based on Kable ought to identify and crystallise the gravamen of the complaint. From this Court’s jurisprudence, one can detect that there at least three categories of complaint raised relying upon Kable.
One of those is the complaint exemplified in Forge 228 CLR 45 about the composition of a court and the minimum requirements in the terms and conditions of the judicial officers for independence and impartiality. Similarly in Bradley 218 CLR 146 the question was whether there was a duty of remuneration owed to judicial officers and it was cast in similar terms.
The second category is Kable itself. The substance of the complaint in this category is whether the court has become an agent or instrument of the legislature in being directed as to the outcome of the exercise of the power. Fardon 223 CLR at page 575 is another example of such a complaint, there of course unsuccessfully made, but on the same ground.
The third category of complaint under Kable, in our submission, is that exemplified here and relied on in Gypsy Jokers 82 ALJR 454, namely, that the power conferred prescribes a departure from the proper judicial process. This complaint is sometimes put as one whereby the process departs to a significant degree from the methods and standards which have characterised judicial activity. This form of complaint most readily relies on the judgment of Justice Gaudron in Nicholas 193 CLR 173 at paragraphs 73 to 74, and on the judgment in Bass 198 CLR 334 at 359, paragraph 56.
It is our submission that with respect to this third category of complaint the nature of the power that is being exercised will be significant and relevant. If, as here, the power is inherently administrative, then the methods and standards which characterise administrative activity will indeed matter to the final determination as to whether the Kable doctrine has been infringed. This is because, as the Full Federal Court acknowledged in Hussain 169 FCR 241 at 280, paragraph 171, administrative activity, including administrative hearings, enjoy a greater degree of latitude. The obligation to accord natural justice may be modified or excluded by unequivocally plain statutory language. A process that would simply not be tolerated in the criminal jurisdiction of a court or in a civil suit may be tolerated when laid down to govern administrative hearings.
Thus the nature of the power is important for an application of Kable with respect to the third category of complaint, namely, those complaints which are based upon departure from the judicial process. This is not to say that because the power as exercised here, being an administrative power, simply falls outside the scope of the Kable doctrine, our submission is a much more modest submission. It is the submission that if the power exercised is administrative, then the inference that its conferral has compromised the institutional integrity of the court is less readily drawn.
FRENCH CJ: Will it be a relevant factor that, assuming the power to be characterised as administrative, it has been traditionally exercised by judicial officers or as an appendage of bodies referred to as courts – may be magistrates or Justices or Licensing Courts?
MS TATE: Your Honour, we would say that the historical practice would indeed be significant in characterising the nature of the power.
FRENCH CJ: This is not going to the question of characterisation of historical exercises of a judicial power, but accepting it to be an
administrative power, it has been traditionally or historically exercised by courts.
MS TATE: We would say, yes, your Honour, that the history of the exercise of the power, even as administrative, would be a significant factor. The fact that it has been exercised by a court and before that at times, in this instance, by special magistrates – and indeed at first originally by the governor in the exercise of prerogative powers, is also something we would say would need to be taken into account; that the whole of the length of that history would be something that would have a degree of relevance. They are the submissions for Victoria, your Honour.
HAYNE J: Just before you sit down, Solicitor, you accept, do you, that Kable does represent a limit, a restraint upon what a State may do in regulating administrative decision making by State judges?
MS TATE: Yes, your Honour.
HAYNE J: So you depart, do you, from the absolute you advanced in paragraph 39 of your written submissions? I understood you to depart; indeed to soften that considerably but I just wanted to be sure that that was so, paragraph 39 at page 14, line 3 and following.
MS TATE: Yes, your Honour. There we say that Kable does not, in itself, create a restraint which in all instances will preclude the modification of procedural fairness in relation to administrative decision making, and we would continue to make that submission ‑ perhaps, your Honour, I ought to qualify that. What we say is that it is the case that the conferral of administrative functions and administrative powers on courts of a State within the meaning of section 77(iii) of the Constitution is limited by the restraint under Kable. Quite what the impact of that restraint is, is something upon which we have addressed your Honours today and is implicit in that paragraph. Thank you, your Honours.
FRENCH CJ: Thank you, Ms Tate. The Solicitor‑General for New South Wales.
MR SEXTON: If the Court pleases, four short matters. The first is a general point. It is important, in our submission, to note that the Kable principle has been confined to cases where legislation, usually in the authorities of State legislation but occasionally Commonwealth legislation, has conferred a function on a Chapter III court with the suggestion that this would make the court an unsuitable body for the exercise of federal jurisdiction and the exercise of federal judicial power and that is essentially this case, subject to one matter that I will come to.
In our submission it is important to distinguish this principle from some associated but perhaps on occasions similar doctrines. One is the Chapter III prohibition on federal legislation conferring a function on a federal judicial officer that is incompatible with his or her role as a member of a federal court.
KIRBY J: Except that the Wilson‑type principle is designed to enure the federal judiciary and maintain its manifest standards and that is also one of the factors that lies behind the Kable doctrine, to enure the State judiciary in a somewhat similar way.
MR SEXTON: Yes, although we would distinguish the two and Wilson and Grollo are examples, as your Honour says, Wilson, of that particular principle. Another associated doctrine is the notion presumably arising out Chapter III of a direct interference with the judicial process of which Liyanage v The Queen might be a rare example although in APLA there seemed to be an argument of an indirect interference with the federal judicial process although that was ultimately rejected. A third category is legislation that affects the composition of a court and might bear on its independence and impartiality and Bradley and Forge are examples of that kind of argument.
I do not wish to say any more about that, your Honours, except to say that it is important, in our submission, to distinguish those sometimes similar but different doctrines from the rather narrow ambit of the Kable principle.
KIRBY J: One might see them as categories and distinguish them for that purpose but one suspects that there is a golden thread that runs through them all relating to the quality, independence, integrity and manifest qualities of our judicature of the Commonwealth, all of it.
MR SEXTON: They all arise out of Chapter III, your Honour. That is certainly true. The second point, we did not in our written submissions discuss the question of whether the Licensing Court of South Australia was a Chapter III court. We made the assumption for the purposes of those submissions that it was. There is obviously a question as to whether the court, in a sense in isolation, was a court for the purpose of Chapter III but it may be academic in this case for two reasons; one is these role of the Supreme Court to which section 28A(5) is also addressed and which in this particular case had a role to play, albeit by way of review rather than by way of appeal.
The second reason why it may be academic is that we would say that the Court will not have to reach those questions if it accepts the arguments put in the South Australian submissions and also in our written submissions that there is not a contravention here of the Kable principle. In those circumstances it would not be necessary for the Court to consider the nature of the Licensing Court which as been the subject of some arguments, of course, before your Honours this morning.
The third matter is to do with section 28A(5). If I could just ask your Honours to look at that provision for a moment. Your Honours have heard detailed submissions, and we adopt the submissions that were made by the Solicitor‑General for South Australia, but in paragraph (a) your Honours will see that it is a requirement to “take steps to maintain the confidentiality of information” and then “including steps to receive evidence and hear argument about the information in private”.
If one assumes that the notion of maintaining confidentiality governs, in a sense, the steps that are to be taken we would simply note that receiving evidence and hearing argument about the information are both procedures that might on occasions be able to be done with the parties present in the same way that, for example, in a contested public interest immunity argument it is possible for both parties to be present. One party, of course, is not in possession of the information. That will be normally before the court and in the possession of the other party but it is still possible to have an argument in those circumstances and I have certainly been present when those sorts of arguments have taken place.
So it seems to us that if the question of maintaining confidentiality is the overriding requirement of the section that that does not necessarily in all circumstances require, for example, that the parties not be present when some argument is taking place. It will of course be a more limited argument than could take place if the material was available to all of the parties and could be referred to in open court.
Finally, the fourth matter. Your Honours, because there has been some discussion in some of the submissions about alternative ways in which this area of regulation could be imposed we would simply note for the Court’s information that the Licensing Court of New South Wales was abolished this year, as of 1 July, after more than 100 years, I think, in existence. This was done by the Liquor Act 2007.
The relevant authority now for determining liquor and gaming licence applications and alterations to those licences and other disciplinary matters is the Casino, Liquor and Gaming Control Authority and that is achieved by that legislation and also by the Casino, Liquor and Gaming Control Authority Act 2007.
KIRBY J: That is a purely administrative body?
MR SEXTON: Yes, your Honour.
KIRBY J: So it could, subject to the statutory provisions and independence required by the statute, perhaps meet ministers or do other things that the courts might not do.
MR SEXTON: Yes, that is right.
KIRBY J: Could we have a copy ‑ not of all of the State legislation, which I assume is quite large, but the key provisions relating to the authority and what it may do that bears on this?
MR SEXTON: Yes, your Honour.
KIRBY J: And was there anything equivalent to 28A(5) in the former legislation of New South Wales?
MR SEXTON: I am not sure of that, your Honour; I will have to look. There is appeals, the disciplinary decisions of the authority. Appeals from those decisions can be taken to the New South Wales Administrative Decisions Tribunal, which is itself, of course, as a result of decisions of the Court of Appeal in Skiwing and 2UE, has been held not to be, of course, a Chapter III court as well. Unless there are any other specific matters, those are our submissions, your Honours.
FRENCH CJ: Thank you. Solicitor-General for Western Australia.
MR MEADOWS: May it please the Court, we only have three relatively short matters to address and the first of them is to pick up on a point that my learned friend the Solicitor-General for New South Wales made about the nature of the inquiry which could be conducted under section 28A
I wanted to direct the Court’s attention to the judgment of Justice Blaxall in Gypsy Jokers Motor Cycle Club Inc v The Commissioner of Police (No 2) [2008] WASC 166. It is yet to be reported. Can I hand up some copies of that. This is the sequel to your Honours’ judgment in Gypsy Jokers and shows the way in which his Honour dealt with the inquiry.
I will not take your Honours through it in any detail, but you will see that in paragraph 50 he set out the classification of categories of public interest immunity dealing with the matter of police investigations and he used those categories as the benchmark against which he would decide whether or not the material which was sought to be kept confidential could be utilised by the court or whether it should be classified as confidential.
If you look at the schedule at the end of the judgment you will see that his Honour went through the material and classified various aspects of the evidence that had been sought to be adduced as being upheld on the grounds of confidentiality or otherwise.
So what it does illustrate, in the context of section 28A, under consideration in this case, is that the exercise can be carried out and an effective resolution made, even though one of the parties would not be privy to the information that is being considered by the court.
Significantly, from the point of view of what my learned friend from New South Wales said, both parties were present in that court when that consideration was being undertaken and were represented by counsel. The result was that the demolition order stood and, if I could just put it briefly, the walls came tumbling down.
The second point that I wanted to mention was in relation to whether this Court has ever considered material which is not made available to one of the parties and I wanted to direct the Court’s attention to Alister v The Queen 154 CLR at page 404 and to that section of the report which commences at page 469. You will see there that the Court was being asked to consider material which the Attorney-General had deposed would impair national security. The Court considered the material and determined that it should not be made available to the accused and did so in circumstances where of course that information was not made available to the accused or counsel. If I could just point to the paragraph, about three‑quarters of the way down the page on page 469, the Court said:
The disposal of any point in litigation, without the fullest argument on behalf of the parties, is a course to which every court reacts adversely, however untenable the point in issue may first appear, and however unlikely it is that the argument will assist it. The present case evokes the same reaction. But it is the inevitable result when privilege is rightly claimed on grounds of national security.
The only other point that I wish to address the Court on was in relation to the consequences of a finding that section 28A did infringe the Kable principle. Our submission is that if that is the position then, rather than the section being invalid, the effect is that the court in which that power is reposed would cease to be a court for the purpose of the Constitution and particularly section 77(iii) and therefore ‑ ‑ ‑
KIRBY J: Does that not run into the problem Justice Hayne raised earlier that it is then self‑referential that Kable has no application because by definition it cannot then be a court and therefore it does not attract a Kable proposition? That does not seem a likely outcome.
MR MEADOWS: The point is, your Honour, that once you determine that the powers conferred by section 28A impinge upon the institutional integrity of that court, then it ceases to be a court for constitutional purposes.
KIRBY J: The other way to look at it is if it continues to be a court, it is what is called a court, it is said to be such, it has indicia and such, then you simply excise from it those provisions which offend the Constitution.
MR MEADOWS: But it still would remain a court for the purposes of State jurisdiction.
KIRBY J: But this keeps it a court for constitutional purposes, except that it excises things that would prevent it.
MR MEADOWS: The State will still have a system of courts. It will still have a Supreme Court which we concede must be maintained in a form which does not attract the Kable principle. Now, that might be very inconvenient for the State in the sense that all of the jurisdiction that might be conferred by section 77(iii) would be reposed in the Supreme Court and the Magistrates Court, but nevertheless the system would still be there to allow the Commonwealth to utilise its powers under section 77(iii).
FRENCH CJ: You could almost accidentally deprive both the District Court and the Magistrates Court of Western Australia a full federal jurisdiction in that way, could you not, on just one offending provision?
MR MEADOWS: That may mean, your Honour, that the States should be alert to that possibility because if they wish the District Court, for example, to continue to exercise federal jurisdiction, then they should not confer powers on it such as section 28A which might infringe the Kable principle. If it please the Court, they are our submissions.
FRENCH CJ: Thank you. The Court will adjourn until 2.15 this afternoon.
AT 12.42 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.22 PM:
FRENCH CJ: Dr Churches, before you begin, could you give us an estimate of time, please?
MR CHURCHES: All my learned friends with planes waiting have asked me that question, your Honour.
FRENCH CJ: Yes, well, now we are asking you.
MR CHURCHES: Yes, much more pertinent because I was able to say to them that I am sure they would catch the 7 o’clock flight. Realistically, I would hope to be – and I have got a bit of ground to cover with six opponents, but ‑ ‑ ‑
FRENCH CJ: Just give us the figure.
MR CHURCHES: Three o’clock.
FRENCH CJ: All right. Thank you.
MR CHURCHES: Your Honours, I think realistically, the way the appellants view what has passed here in the last day and a half, for the appellants to win, what is really required is explication to the court and acceptance by the court that section 28A is not on anything like all fours with the relevant Western Australian legislation in Gypsy Jokers, that is, in particular, section 76(2) of the Corruption and Crime Commission Act (WA).
I might say that there are a number of small matters we will need to attend to after that because so much has been ventilated by six opponents, but we regard that as frankly bowling late in the day that needs to be dispatched, as such bowling should be. But the really critical argument, in our estimate, is that analogy drawn between the result in Gypsy Jokers and the finding that the Western Australian Supreme Court was not compelled in any way, and the question of whether compulsion is still available against either the Liquor Licensing Court or the South Australian Supreme Court.
If I could take your Honours to the set of material books, volume II, kindly prepared by the second respondent. Gypsy Jokers is set out in there. The relevant page that I need to take your Honours to, to begin, is volume II, page 515. So that is 82 ALJR 454 at 462. We find at the bottom left‑hand column, paragraph [25]. The heading is, of course, “The construction of s 76” and that is the Corruption and Crime Commission Act (WA). There we find in the joint judgment of Justices Gummow, Hayne, Heydon and Kiefel:
The scheme of s 76 is to displace what otherwise might have been a claim to public interest immunity by the Commissioner of Police. Section 76 does so by providing that information supplied by the Commissioner to the Supreme Court is subject to limitations upon use and disclosure of that information where the Supreme Court is satisfied disclosure might prejudice the operations of the Commissioner.
What follows, your Honour, is an explanation that section 76 is a very special form of judicial review provided to the Western Australian Supreme Court in fact in alternative, a complete alternative to ordinary otherwise operable judicial review and the judicial review is in respect of the Western Australian Police Commissioner’s powers to declare that particular places are to fall into a classification which will entitle him to have them knocked down and he does that classification on the basis that he finds they are fortified places and also the habitual resort of undesirable characters.
So far so good. Obviously the Police Commissioner needs information on which he will base that estimation or that classification and he does that under section 72 of the Western Australian Act. The Western Australian Act then provides in section 76(2) for an overview of the information gleaning process and an assessment of the reasonableness of the process of identification of the premises as premises that need to be classified to be knocked down. It is 76(2) which is over the page at page 516 of that volume, so 463 of the Australian Law Journal Report, at paragraph [30] is set out 76(2) and it is that subsection which was critical to this Court being able to determine, by a very substantial majority I note, that there was no compulsion on the Supreme Court because this Court was able to find – and I refer here to four members of the Court – that the words in 76(2), “if its disclosure” that is the disclosure of the information on which the Police Commissioner based his estimation:
if its disclosure might prejudice the operations of the Commissioner of Police –
Those words appear from line 3 of 76(2), that is paragraph [30] on that page. They are the words immediately from line 3 onwards. It is noteworthy that in that majority judgment, or joint judgment, at the end of paragraph [33], the last five lines, so from B to C, in paragraph [33] parenthetically is added:
(It may be added that even if the power –
that is the power to determine the nature of confidentiality –
were expressly conditioned upon the existence of the opinion of the Commissioner, this would be treated as requiring an opinion formed reasonably upon the material before the Commissioner.)
What was being said there was that the Supreme Court still had within its power and its capacity an overview and a capacity to determine the reasonableness to judicially review that decision of the Police Commissioner as to the confidentiality and the nature of the information upon which he, the Police Commissioner, was then acting in his determination as to the nature of fortified premises.
Our point then, your Honours, is that a determination by the Western Australian Supreme Court at that point terminates the matter. This Court was able to find that the Western Australian Supreme Court was not put in a corner and commanded to a particular view on the evidence that it had a capacity to determine whether there was a reasonable decision taken in respect of not just the fortification process but the subordinate issue of the nature of the information as to whether it was confidential or not. The court could take that decision and therefore at that point there was no further compulsion on the court.
In our submission, what is different in this situation is that section 28A does not finish at the point at which it has been suggested by some parties at the bar table that the Supreme Court – or indeed it has been suggested throughout that the Liquor Licensing Court and I find that remarkable but even allowing for the Supreme Court of South Australia to review the classification process of the Police Commissioner does not terminate the point at which compulsion engages and is pointed at either the Liquor Court or the Supreme Court.
At the point at which, for example, the Supreme Court of South Australia determined that it had reviewed the classification process by the Police Commissioner – and I might say that the appellants do not concede that that is open as a matter of determining jurisdictional fact ‑ but even if there was a George v Rockett possibility of reviewing the reasonableness, nonetheless we are left with the situation in which the Supreme Court having determined that on review the decision of the Police Commissioner of South Australia is a reasonable one, then the court has no further sieving or elimination prospect. It is then confronted full on with the impact of section 28A.
It is at that point section 28A operates and subsection (5) commences with that word “must”. At that point – and we put aside for the purposes of this aspect of the argument the Liquor Licensing Court ‑ on an appeal to the Full Court, three judges ‑ even possibly five – are confronted with a requirement; an absolute command that they must, upon the triggering of the application by the Police Commissioner, a member of the Executive pulls the trigger and then they are commanded to take steps as to the confidentiality.
There have been arguments suggested to your Honours that the steps outlined in the last three lines of section 28A(5) that there be a private hearing and that the affected party be removed from the courtroom, being suggested that that might only be a possible alternative. I would submit in contradiction to that to your Honours that the legislature, having gone out of its way to enumerate that particular aspect of the protection of the criminal intelligence, the legislature’s intent is quite plain. That is what it means and the command is there to the Liquor Court and to the Supreme Court.
In our submission, it is not enough to say that there is a safety valve in which the Supreme Court might be able to review and might, in our submission, it would be one in a thousand, to actually be able to review the Police Commissioner’s determination and classification as improper. Even allowing that that might happen, nonetheless the possibility – and it must be as a matter of logic a possibility – of a determination by the Police Commissioner of information classified as criminal intelligence coming through to the Liquor Court and then on appeal to the Supreme Court results in the command.
FRENCH CJ: Assuming that the Solicitor‑General for South Australia was correct to accept that the reference to “classified” in subsection (5) means “correctly classified”, which was a proposition I put to him, which is stronger of course than George v Rockett, and secondly that the inclusion of those steps is permissive rather than mandatory and in particular that the court might take steps to maintain confidentiality which would allow for the presence of legal representatives of the party affected at the argument about the material. If that be accepted, does that affect your case, or do you say your position is unchanged if there are those sort of levels of porousness in the obligation?
MR CHURCHES: We are not minded to porousness at all, your Honour.
FRENCH CJ: No. I appreciate that, but I am just asking that assuming for the sake of argument that what the Solicitor‑General accepted is correct, does that have any impact on your submissions?
MR CHURCHES: I need to be very frank with your Honour. We simply cannot accept the proposition at all that, for example, counsel for the applicant would be allowed. In our submission, that would be absolutely flat contrary to what the legislature has provided, flat contrary. So there cannot be a halfway house.
FRENCH CJ: Well, you are not going to answer my question?
MR CHURCHES: No, I am sorry, I apologise, your Honour. I have missed the thread of – if you could take me through it again?
FRENCH CJ: What I was asking you is assuming, contrary to your submission, that what the Solicitor‑General for South Australia accepted as correct, a proper construction of that section is the proper construction?
MR CHURCHES: And I apologise, I have forgotten the South Australia submission.
FRENCH CJ: That is to say that classification can be reviewed for correctness; and secondly, that legal representatives could be permitted to attend a hearing from which the party itself was excluded. Does that make any difference to your submissions?
MR CHURCHES: If I could just track that right down, your Honour, do you mean was the submission from the Solicitor‑General to the effect that legal representatives of the applicant would be present at the process of reviewing the classification?
FRENCH CJ: That the steps to maintain the confidentiality of the information would not necessarily involve the exclusion of the legal representatives of the applicant for the licence on a hearing about whether the licence should be granted, for example, or perhaps on the classification review.
MR CHURCHES: No, your Honour – and I now can answer your Honour quite clearly ‑.that does not affect our argument one little bit because we say that even if – and it would be a huge “if” – and we would submit, I might say, that the clear intent of the legislature is that the legal representatives not be allowed to be present at that preliminary review point, but even if they were and even if they argued up hill and down dale as to whether the classification had been unreasonable, at the end of the day there must be the logical possibility ‑ and we all know it is a very strong possibility ‑ that the classification by the Police Commissioner will emerge unscathed, and at that point the gun is loaded against the Liquor Court and the Supreme Court. So it matters not that the representatives were there at an earlier point. That is the difference between this situation and the Western Australian situation where ‑ ‑ ‑
GUMMOW J: What about correctly classified?
MR CHURCHES: I am sorry, your Honour. I have missed “correctly”, your Honour. Where is it?
GUMMOW J: It is not there. You are being asked to assume that it is on a proper construction.
MR CHURCHES: Well, it is a judicial review process. We are into the area of George v Rockett and Buck v Bavone and what can a court do on a review? Indeed, the absence of “correctly” probably allows the Police Commissioner a rather larger ambit of decision. So we have now got a Police Commissioner very unlikely to be restrained. The presence of the legal representatives of the applicant at that initial point is neither here nor there, but it is that earlier point which was at stake in Gypsy Jokers because that was the point at which it appeared that the Western Australian Supreme Court was commanded by the Western Australian legislature as to accepting particular evidence.
Our submission is here, once the evidence is dealt with and it is very likely and it must be a logical possibility that the classification by the Police Commissioner goes on, the criminal intelligence is then duly delivered either to the Liquor Court or on appeal to the Supreme Court, and then we say the gun is loaded. The Police Commissioner then applies for steps to be taken, and the confidentiality ensues, the natural justice is chased from the courtroom, and the applicant is outside, and in our submission, that is the critical difference between the two.
When I say the applicant is chased out outside, at that point I note that the submissions from all my learned friends has really been to the tune of – perhaps with the exception of Victoria and Queensland who have kept rather more technical in their approach – but we have had submissions which really go to the extent of natural justice is not really eliminated, is it, and we have the sensation that the applicant will be left outside the courtroom door with the glass up on it trying to hear what is being said. We get these murmurs about how natural justice might yet be found even though they are outside the courtroom. It just does not work. That does take us to the additional material from various learned friends.
That does take us to the additional material from various learned friends. In our submission, it is a very considerable irony that six out of the seven major governments in this country send their law officers to say that natural justice still exists in this sort of situation.
FRENCH CJ: I wonder, Dr Churches, whether we could keep the sort of social commentary out of it and just focus on your submissions. It does not help them.
MR CHURCHES: It is the attempt, though, to blur natural justice as existing when, in our submission, it does not exist, which is a serious matter, your Honour, the problem being that these law officers would be very, very clear if the shoe were on the other foot, that the words in 28A ‑ ‑ ‑
FRENCH CJ: We are not concerned about that. We just want to hear your submissions.
MR CHURCHES: Yes, but 28A is very, very clear in its import. It is there to ensure that there is no natural justice. It is there for a reason which we understand and that is the real nub of this submission. I apologise if I have overflowed in the direction of learned friends. The point is that the legislature has set out to guard the public interest. We understand that. But the problem is that the legislature has gone about it in a ham‑fisted way. They have attempted, and they have set out in quite clear words, to command the courts of South Australia, the Liquor Court and then the Supreme Court. That is inappropriate.
The appropriate way is to trust the courts in their inherent jurisdiction to attend to the public interest. That is what the courts did in Parish v ABC. That is what the Court did in Nicopoulos. It is quite clear there set out in our submissions and the material book. We have given your Honours the relevant pages. The judges there, Chief Justice Bowen and Justice Deane, in Parish are quite clear that they are acting in the inherent jurisdiction of the Federal Court. Acting Justice Smart in Nicopoulos talks about acting in the public interest, but he is taking the decisions as the judge in charge.
None of these judges are acting under command from a legislature. They know that they have a duty to guard the corpus of whatever it might be that is before the court; the sanctity of the prison rules and the operations of the prison in Nicopoulos, the need to guard intellectual property in Parish v ABC. The judges understand this and the South Australian legislature has misfired, in our submission, by not trusting the judges and going one further than the Federal Government did in its anti‑terror law of 2004, the subject of Lodhi, where they talked about commanding the judge to give greatest weight in the judge’s decision‑making as to whether to release material to the affected party but ultimately leaving the decision as to how the evidence was dealt with to the judge. In our submission, that is the correct way to go. The South Australian legislature, in our submission, has got that wrong.
KIRBY J: Does that amount to anything more than that you say that this Court should not struggle to read down section 28A(5), but should read it as
it does other legislation which is to give effect to the apparent purposes of Parliament as expressed in the text?
MR CHURCHES: Yes.
KIRBY J: So that rule is itself subject to a countervailing rule that you then endeavour, where legislation seeks or might appear to take away basic rights, to read it in such a way as to preserve those basic rights?
MR CHURCHES: Your Honour, on every statutory interpretative approach, context, the intent of the legislature, the purpose of the legislation – we distinguish, in particular, 28A from the Western Australian Crime and Corruption Commission legislation and we then turn to the fate of 28A. In our submission, it is completely insupportable and must be found in its entirety invalid. It contains command to the courts which is, in our submission, for Kable reasons, if I can shorthand it that way, is repugnant to the constitutional provisions under Chapter III. Your Honours, I think, unless there is anything further ‑ ‑ ‑
FRENCH CJ: Thank you, Dr Churches.
MR CHURCHES: If I could only just note in final words, your Honours, that it is not often that seven of you are able to come to Adelaide and be only two blocks from the locus in quo. It is at the corner of Halifax and King William Street on the south‑eastern corner.
FRENCH CJ: I do not think we will be taking a view. Thank you. We thank counsel for their assistance. The Court will adjourn briefly to reconstitute for the next matter.
AT 2.45 PM THE MATTER WAS ADJOURNED
0
4
0